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UNITED STATES OF AMERICA.! 









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V .' 



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A REPORT 



OK 



THE BOUNDARIES 



OF THE 



PROVINCE OF ONTARIO. 



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BY 



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DAVID MILLS, M.R 





TORONTO: 
PRINTED BY HUNTER, ROSE <fe CO., 86 <fe 88 KING ST. WEST 

1873. 






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Toronto, 17th December, 1872. 

Sir, 

In March last I was appointed by the Government of Ontario a 
Special Commissioner, for the purpose of enquiring into the location of the 
Northern and Western Boundaries of the Province, and reporting thereon. 

In May last, with a view to enable the Government to propose a conven- 
tional line • as a boundary, in case the Canadian Government were disposed 
to agree to an equitable settlement, I placed in their hands a general state- 
ment of the conclusions at which I had arrived from the investigations that, 
in so short a period of time as six weeks, I had been able to make . I had 
reason to believe that further enquiry would confirm the conclusions then 
reached. 

That conventional boundary was proposed, and I am not aware that the 
Government of Canada has either accepted or rejected the proposal ; and 
as the Government of Canada have sought to give to this Province boundaries 
more restricted than were ever before proposed, it was all the more necessary 
that the Government of Ontario should have the fullest possible information 
upon the subject. 

I obtained what information I could from the library of Congress, and 
from the Department of the Secretary of State at Washington ; I also ex- 
amined, in the library of Parliament, at Ottawa, whatever seemed to have an 
important bearing upon the subject, as well as some works in private libraries. 

There are a few Maps and other Documents referred to in this Report 
which I was unable to find. They are no doubt to be had by application to 
the Colonial Office, and if obtained, will, I am confident, sustain the claims 
of Ontario, and make some things matters of certainty which might other- 
wise be regarded only as matters of probability. 

In submitting to the Government the accompanying Report, I would say 
that I have given such references to sources of information and to authorities 
as may prove serviceable in maintaining the claims of the Province to the 
territories in dispute. 

I have the honour to be, 

Sir, 

Your obedient Servant, 

DAVID MILLS. 

The Hon. T. B. Pardee, 

Provincial Secretary. 



\ 



CONTENTS. 



PAOK 

Western Boundary. — Parti... 1 

Northern Boundary. — Part II.. 91 



APPE3STDIX. 

Appendix A. — Charter of the Hudson's Bay Company 1 47 

Appendix B. — Extracts from Franklin's letters to his Son, and Sir 

W. Johnson's to Lords of Trade 165 

Appendix C. — Extracts from the Debate in the House of Commons 

on the Quebec Bill 171 

Appendix D. — Lord Mansfield's letter to Earl Grenville, condemn- 
ing the policy adopted in the government of Quebec 188 

Appendix E. — General Gage's proclamation to the French of Illinois 190 

Appendix F.— Proclamation of the 7th of October, 1763 . 192 

Appendix G. — Extracts from Captain Pitman's account of the 

Illinois settlements in 1 768 198 

Appendix H. — Extracts from Colonel Crogan's diary, &c, showing 

the extent of the French settlements of the West 203 

Appendix I. — Extracts from the correspondence between Pitt and 
Choiseul relative to the boundary between Canada and Louisi- 
ana. Also Dumas' suggestions as to the same boundary, 
which seem to have been the basis of Due de Choiseul's pro- 
positions 209 

Appendix J. — Extracts. — Boundaries between Canada and Louisi- 
ana under the French 228 

Appendix K. — Report of the Council of Marine on a north-west 

expedition to explore and colonize the country, 1717 231 



Yl CONTENTS. 

paob 

Appendix L. — Extracts from McKenzie's History of the Fur Trade, 

and Carver's Travels 232 

Appendix M. — Extracts from Paris Documents, found in the N. Y. 

Historical Collection, relative to French, explorations 242 

Appendix N. — Two letters of Sir George E. Cartier and the Hon. 
W. McDougall to Sir F. Rogers, of the 16th of January 
and the 8th of February, 1869, respectively 247 

Appendix O. — Correspondence of the Hudson's Bay Company 284 

Appendix P. — Extracts from the letters of Bolingbroke, Prior, and 
De Torcy upon the construction of the 10th Article of the 
Treaty of Utrecht 319 

Appendix Q. — Lease from George the Fourth to the Hudson's Bay 

and North West Companies, 5th December, 1821 .,. 322 

Appendix R.— Memorandum to the Secretary of State for the 
Colonies, 6th May, 1857, by Chief Justice Draper. Paper 
relative to the boundaries, 28th May, 1857, by Chief Justice 
Draper 327 

Appendix S. — Memorandum of the Commissioner of Crown Lands, 

1857. Appendix B — in appendix No. 17, 1857 345 

Appendix T. — Opinions of eminent lawyers upon the charter of the 

Hudson's Bay Company 401 



MAPS. 

' No. 1. — John Senex's map, a.d. 1710. 

\ No. 2. — Map of N. America, by William Delisle, First Geographer to 
the King, Amsterdam, a.d. 1739. 

* No. 3.— Jeffery's map of the North part of North America, A.d. 1762. 
'No. 4. — Peter Bell's map of the British Dominions in North America, 

according to the Treaty of 1763. Date a.d. 1772. 

* No. 5. — Mr. D'Anville's map of North America, with the boundaries 

as laid down by the King in Council, &c. Date A.D. 1775. 
*No. 6. — Governor Pownall's map of North. America. Date a.d. 17716s, £ 
-* No. 7.— Kitchen's map of North America, showing the boundaries of 
» Canada after the Treaty of 1783. Date 1794. 

*No. 8. — Map of North America, showing the territories claimed by 

France in 1756, with the French forts marked. 
* No. 9. — Map of the boundary line between the northern colonies and 

the Indians, established by the Treaty of Fort Stanwix, 1768. 
* No. 10. — Map of the French settlements in Illinois, by Thomas Hutchins, 

Captain in His Majesty's 60th Regiment. 



REPORT ON THE BOUNDARIES 



OF THE 



P^ROVIN-CE OF ONTAEIO: 



§a*t !♦ 

WESTERN BOUNDARY OF ONTARIO. 

Differences having arisen between the G-overnment of On- 
tario and the G-overnment of Canada, as to the boundaries 
"between the Province of Ontario and the Territories of Canada, 
which were formerly in the possession of " The Company of 
Merchant Adventurers of England, trading in Hudson's Bay," 
I purpose to consider the boundaries in dispute separately, as 
the law and the facts by which they must be determined are 
quite distinct. The Western limit of Ontario is to be ascer- 
tained, and located by the proper construction of an Act of the 
Imperial Parliament, of Treaties with the United States, of 
Orders in Council, of Proclamations and Eoyal Commissions 
interpreted by the aid of contemporaneous facts. 

The location of the Northern limit can be ascertained with 
an approximation to exactness, by the facts of history, by acts 
of State, and by well established principles of Public Law. 

It will not be necessary, in order to determine the location 
of the Western boundary of Ontario, to state with any great 
degree of minuteness the limits of Canada, while in the posses- 
sion of France. Before its conquest by England, and its cession 
under the Treaty of Paris in 1763, the undisputed possessions 
•of France in North America may be stated, in general terms, 
to have been all that part of North America lying North of the 
St. Lawrence, the great Lakes and the River Illinois — except 
a small portion of Territory, about the trading posts of the 
Hudson's Bay Company, in the vicinity of Hudson's Bay— 



2 WESTERN BOUNDARY OF ONTARIO. Part L . 

and nearly the whole of the Western half of the valley of the 
Mississippi. The French authorities denied the right of Eng- 
land or her Colonies to any territory west of the Alleghany 
Mountains, or north of the watershed of the St. Lawrence. 

At first, the French undertook to extend their possessions 
by force of arms. In this they failed. Subsequently guided 
by the good sense of Frontenac and Calliers, they sought to 
establish friendly relations with the Indians. The French 
settlers in North America gave but little attention to agricul- 
ture, being mostly engaged in the Fur Trade. Many allied 
themselves with the Indians, and were governed by Indian 
usages. The Government of Canada, in order to prevent mis- 
chief, maintain peace, and preserve some of the elements of a 
Christian civilization, subjected these coureurs des bois to its 
control in the most distant parts of its extensive Territory. 
No Canadian was suffered to trade with the Indians, but by 
license from his Governor, and under such regulations as that 
license ordained. The Government divided the country into 
hunts, as it was divided amongst the Indians themselves. No 
license extended beyond the limits of a single hunt ; and 
the Canadian hunter strictly conformed to the practice of the 
tribe to whose hunt his license extended. He was their partner 
or companion in the chase, and their agent in the disposal of 
their furs. His license forbade him, under severe penalties, 
to trade or to hunt, on any account whatever, beyond the 
limits assigned him. In this way the French authorities, at 
a very early day, acquired a regular and exact knowledge of 
a very great extent of country. When the Governor had 
issued for any hunt as many licenses as its commerce would 
bear, it became necessary, as the number of French Canadian 
hunters and fur traders increased, to extend the sovereignty 
of France by new discoveries, and to make constantly fresh 
acquisitions of territory. 

It was in this way, as well as by the expeditions of La Salle, 
Tonti, Marquette, Joliet, Alouez and other explorers, that the 
authorities of France, in Canada, acquired a knowledge of all 



Part I. 



WESTERN BOUNDARY OF ONTARIO. 



3 



the waters, portages, passes, and posts which they believed 
would enable them to establish their supremacy in North 
America. While the coureurs des bois were pursuing their own 
interests, they acquired, for the Government of Canada, a 
military knowledge of the ground ; and as their interests were 
identical with the interests of the various Indian Tribes, with 
whom they mingled, they enabled the Canadian Governor 
to make every trading post a fort, and put a garrison into it 
when he deemed it necessary. 

The policy of the French had been such as to secure the 
good will of the Indians ; and while a few Frenchmen spread 
themselves, unmolested, over a great portion of the continent, 
the English colonists could not safely travel far from their 
settlements into the interior, and the servants of the Hudson's 
Bay Company, for more than eighty years, never ventured 
away from the forts which the company had erected upon 
the shores of that Bav. ^ 



* Governor Pownall thus classifies the Indian tribes in the English and Erench 


interest in 1756: — In the Erench interest: 


Eastern Indians. 




Northern Indians. 


Esquimeaux. 




Assinipoles. 


St. John's. 




Adriondacks. 


Micmacs. 




Algon quins. 


Penobscots. 




Ottawas. 


Norridgwalks. 




Hurons. 


Abenakias. 




Missasagues. 


St. Francis. 




Outogomies. 


Caughnawagas. 




Miscontinis, 


Shawanese. 




Sakis. 


Oswegatchie. 




Christeneaux. 


( Delewares, Shawenese, except > 




Alinipogies. 


< a few upon the Susquehana 




Nipissenes. 


( river. J 






Western Indians. 




Southern Indians. 


Sioux. 




Osages. 


Nadouesseries. 




Arkansaws. 


Illinois. 




Choctaws. 


Tan igtwies. 




Passimacs. 


Piankashawaes. 




Adages. 


Wawyactaes. 






Picques. 






Kaskaskies. 






Creeks. 






Indians in 


the English interest : 


Mohawks. 




Cherokees. 


Mehikanders. 




Chickasaws. 


Cawtabas. 




The Five Nations. 



— Pownall on the Colonies, vol. 2, p r 205. 



4 WESTERN BOUNDARY OF ONTARIO. Part L 

At Detroit, Mackinaw, G-reen Bay, St. Josephs, and in the 
Illinois country, colonies were formed, and the country was 
taken possession of, in the name of the King of France. As 
eaily as 1682, La Salle explored the j valley of the Mississippi, 
to the mouth of that river, and took formal possession of the 
country, which he designated the country of Louisiana. * 

The wars in which France was soon after engaged upon the 
Continent of Europe, and the murder of La Salle, checked for 
a time, French colonization in North America. 

In 1688, a census of all the French upon this continent 
showed a population of only 11,249. The English colonists at 
that time, were at least twenty times as numerous. The coun- 
try of the Illinois, or, as it was then frequently called by the 
French, Upper Louisiana, seems to have been occupied, with- 
without interruption, by French Canadians, from the time of 
La Salle's first visit in 1679. 

On account of the hostility of the Iroquois, the earlier 
French explorers were cut off from Lakes Ontario and Erie, 

* " A process verbal " says Albach, ' ' in the French Archives describes the ceremony 

with which possession was taken of the country, in the name of the French King. It 

thus proceeds : 

" ' We landed on the bank of the most Western Channel, about three leagues from 
its mouth. On the 7th, M. de la Salle went to reconnoitre the shores of the neigh- 
bouring sea, and M. de Tonti likewise examined the great middle channel. They 
found these two outlets beautiful, large, and deep. On the 8th, we reascended the 
river, a little above its confluence with the sea to find a dry place, beyond the reach of 
inundations. The elevation of the North Pole was here about twenty-seven degrees. 
Here we prepared a column and cross, and to the said column we affixed the arms of 
France with this inscription : ' Louis le Grand, eoi de France et de Navarre, 

REGNE, LE NEUVIEME AVRIL, 1682.' 

" ' The whole party under arms chanted the Te Deum, the Exaudiat, the Domine 
Salvum fac Regum ; and then after a salute of firearms, and cries of Vive le Roi, the 
column was erected by M. de la Salle, who standing near it said with a loud voice in 
French : ' In the name of the Most High, Mighty, Invincible and Victorious Prince, 
Louis the Great, by the grace of God, King of France and of Navarre, Fourteenth of 
that name, this the 9th day of April, 1682, I, in virtue of the Commission of his Ma- 
jesty which I hold in my hand, and which may be seen by all whom it may concern, 
have taken and do now take in the name of his Majesty, and of his successors to the 
Crown, possession of this country of Louisiana, the seas, harbours, ports, bays, 
adjacent straits, and all the nations, peoples, provinces, cities, towns, villages, 
mines, minerals, fisheries, streams, and rivers within the extent of the said Louisianna, 
from the mouth of the great river St. Louis, otherwise called the Ohio, &c, and 
this with consent of the (nations) with whom we have made alliance, as also along the 
river Colbert or Mississippi, and the rivers which discharge themselves therein, from its 
source beyond the country of the Sioux. * * * * As far as its mouth at 
the sea or Gulf of Mexico, and also the mouth of the river of Palms, upon the assur- 
ance we have had from the natives of these countries, that we are the first Europeans 
who have descended or ascended the said river Colbert (Mississippi); hereby protesting 
against all who may hereafter undertake to invade any or all of these aforesaid coun- 
tries, peoples or lands, to the prejudice of the rights of his Majesty acquired, by the 



Parti. WESTERN BOUNDARY OF ONTARIO. 5 

and their route to the upper lakes and the valley of the Mis- 
sissippi, was by the way of the Ottawa, Lake Nippissing, French 
Eiver, and Lake Huron. It was this exclusion of the French 
from what is now the settled part of the Province of Ontario, 
by the Iroquois, that formed the basis of the claim of the colony 
of New York to the territory between the Ottawa and Detroit 
rivers. Marquette reached the Mississippi by passing through 
G-reen Bay, Fox Eiver, Lake Winnebago, and thence down 
the Wisconsin, 

The route followed by La Salle was from Niagara through 
Lakes Erie, St. Clair, Huron and Michigan to the river St. 
Joseph. Up that river to the nearest point of the Kankakee 
— a branch of the Illinois — and thence down the Kankakee and 
Illinois rivers into the Mississippi. 

About the year 1716, another route was discovered from the 
upper part of Lake Erie up the Miami to what is now the site 
of Fort Wayne, and thence across a portage to the Wabash, 
and down the Wabash and the Ohio, into the Mississippi. 

At a still later period, a fourth route was opened from Pres- 
qu'Isle, on Lake Erie, over a portage fifteen miles in length, to 
a point on French Creek, now Waterford, in Pennsylvania, 
and thence down that stream to the Alleghany and the Ohio, 
Along these various routes communication was kept up be- 
tween the people of Montreal and Quebec, and the settlers 
and the traders upon the Mississippi and its tributaries. 

Many trading posts and forts were established not only 

consent of the nations dwelling herein. Of which and of all else that is needful, I 
hereby take to witness those who hear me, and demand an Act of the notary here pre- 
sent, as required by law. 

" ' To which the whole assembly responded with shouts of Vive le Roi, and with salutes 
of firearms, and the said Sieur de la Salle, caused to be buried at the foot of a tree, a 
leaden plate, on one side of which were engraved the arms of France, and upon the other 
side an inscription in Latin, with the name of the King, the date, the number in the 
expedition, and the extent of the river which they had navigated."' 

By this act the foundation of the claim of France to the Mississippi valley, according 

to the usages of European nations, was laid. 

On the 24th of July, 1684, twenty-four vessels sailed for America, four of which 

containing two hundred and eighty persons, was d stined for La Salle's new country, 

the famed Louisiana. See, also, Falconer's Mississippi Spark's Life of La Salle; and 

Parkman's Discovery of the Great West. 



6 WESTERN BOUNDARY OF ONTARIO. Part t 

upon Lakes Superior and Nipigon, but also upon Lake of the 
Woods, Lake Winnipeg, the upper Missouri, the Eed River 
of the north, and the Saskatchewan. 

Agriculture was neglected, except at Detroit, and at the 
colonies in Illinois. Forts were built at many other points to 
protect the traders, and to make secure the ascendancy of the 
French oyer the Indians. As early as 1721, Charlevois pre- 
dicted that the posts in Illinois would become the granary of 
Louisiana; and in 1746, there were sent from these colonies to 
New Orleans fifty tons of flour, besides a large quantity sup- 
plied to the Indians.* Two years later M. Vaudreuil enu- 
merated its productions, among which were flour, corn, bacon, 
hams, and various other edibles. I make these statements for 
the purpose of showing that small colonies of French were 
scattered over various parts of the continent, from the Grulf 
of St. Lawrence to the Mississippi, advantageously planted to 
secure the fur-trade, to form the nuclei of larger settlements, 
and to keep the English colonies confined within their settled 
limits, south of the water shed of the St. Lawrence, and east 
of the Alleghany mountains. 

The policy of France in extending her possessions, ne- 
cessitated cautious watchfulness on the part of England and 
her colonies. The French rested their claim to the whole 
valley of the Mississippi upon the explorations of Marquette 
and La Salle, upon actual occupation, and upon the construc- 
tion they gave to the Treaties of Ryswick, Utrecht, and Aix-la- 
Chapelle. With characteristic negligence, the British plenipo- 
tentiaries, at Aix-la-Chapelle, had left their boundary along 
its whole line, determined only by the very vague agreement, 
that it should be, when peace was restored, what it had been 
before the war began. Previous to the war it had, for a quar- 
ter of a century, been a matter of dispute. The Treaty simply 
postponed a settlement. In this doubtful condition of unde- 
termined limits of sovereignty, the two peoples made haste to 

* Imlay says that 800,000 pounds of flour— a quantity equal to 4,285 barrels— was ex- 
ported in 1746 from Illinois to New Orleans. 



PartI. WESTERN BOUNDARY OF ONTARIO. 7 

occupy as much of the disputed territory as possible, without 
flagrantly violating their treaty obligations. The English 
claimed all the country lying west of their colonies upon the 
coast. They based their claim upon prior occupation of the 
coast, upon opposite constructions of treaties, and upon the 
cession to them of Indian rights by the Indians themselves. 

The charters granted by the kings to all the old colonies, ex- 
pressly extended their grants westward to the South Sea. 
These claims, though held in abeyance, were never relinquish- 
ed. The English colonies being fixed agricultural communi- 
ties, seeking to draw their wealth from the soil, rather than 
by profits upon trade with the Indians, were, for this reason, 
not likely to explore the country further than they were pre- 
pared to colonise it; yet they were not willing that their 
opportunity for indefinite expansion should be destroyed, by 
a loss of a large part of the territory covered by their charters. 

The French colonies were trading, military, and missionary 
establishments, and it is easy to understand why they became fa- 
miliar with the whole valley of the Mississippi, before the Eng- 
lish colonists passed the Alleghanies. 

The country beyond the mountains was not, however, wholly 
unknown to the English. 

Explorations had been made by means of individual enter- 
prise, and efforts were put forward at a very early day to 
induce the English Government to colonise the valley of the 
Mississippi. Charles L, in 1630, granted to Sir Eobert Heath 
-all the continent between thirty-one and thirty-six degrees 
north latitude, from the Atlantic to the Pacific Ocean. In 1638, 
it was consigned to the Earl of Arundel. It was afterwards 
transferred to one Coxe.* It is related by his son, that in the 
prosecution of this claim, the valley of the Mississippi was ex- 
plored by Col. Wood and a Mr. Needham between 1654 and 
1664; that in 1698, several persons went from New England 
nearly five hundred miles west of the Mississippi ; that Dr.Coxe 

* See Coxe's Memorial to King William, 1699. 



8 WESTERN BOUNDARY OF ONTARIO. Part!. 

had fitted out two vessels under Captain Barr, one of which as- 
cended the Mississippi, in 1698, a hundred miles ; and that 
they designed to establish there a Huguenot settlement ; but 
the project was frustrated by the death of its chief promoter, 
Lord Lonsdale. The south pass over the Eocky Mountains is- 
described. The country west of the Mississippi is said to 
be well suited for the use of camels, and the gold of California 
is noticed. The statements in this remarkable book, being 
without contemporary corroboration, were never relied on as 
the basis of any right to the Povince of Carolana.* 

As early as 1710, Alexander Spoftswood, the Governor of 
Yirginia, induced the Legislature of that province to make an 
appropriation to defray the expenses of exploring the country 
beyond the Alleghanies, and to discover, if possible, a pass to 
the Ohio or Mississippi valley. He presented a memorial to 
the English Government in which he described the French 
plan of military occupation, and pointed, out with wonderful 
sagacity, the effort that would be made to keep the English 
east of the mountains, f 

The chief ground upon which the British claimed the coun- 
try west of the Alleghany mountains was, that they had pur- 
chased the country from the Iroquois nations. 

The Iroquois held the country by original possession, or by 
conquest, from the Ottawa to the Mississippi. They had left 
most of the tribes they conquered to manage their internal af- 
fairs as they chose, but they claimed, as conquerors, the right 
to dispose of the country. On this right thus acquired the 
Iroquois confederacy sold to the British Government what is 
now Western Yirginia, Kentucky, and a large part of Illinois. 
In 1684 they made a deed of sale to the British authorities, at 
Albany, of the country from the Illinois river eastward into Ca- 
nada^ and in 1726 they conveyed all their lands in trust to 

* Coxe's Description of Caroiana, called by the Spanish Florida, and by the French 
Louisiana, London, 1772. 

+ See Graham's Colonial History. 

t Plain Facts : Philadelphia, 1781, pp. 22-3. 



Part I. WESTERN BOUNDARY OF ONTARIO. 9 

England to be protected and defended by his Majesty to and 
for the use of the grantors and their heirs. # f t 

* Pownall's Administration of the Colonies, vol. 1. 

+ In 1673 AUouez and Dablon found the Miamis upon Lake Michigan dreading a 
visit from the New Ycrk Ccnfedsrates. In 1680 La Sa"'e for ad them upon the Illinois, 
and Tonti was in the country when they drove the Illinois beyond the Mississippi ; but 
through the influence of the French, confederacies were formed against them, and their 
title to such extended regions became very questionable. See Colden's History of the 
Iroquois ; Early History of Pennsylvania ; and Parkman's Discovery of the G-reatWest. 
+ The Erencb nation, having always been desirous to extend their dominion in Ame- 
rica, have lost no opportunity of encroaching upon their neighbours there. And al- 
though your Majesty and your royal ancestors have an uncontestable right as well by 
discovery as possession to the several British colonies in America; yet the French 
Kings have at sundry times made grants thereof to their subjects. Such were the 
letters patent of Louis the 13th, in favour'of the French West India Company, bearing 
date the 29th of April 1627 ; and those of Louis the 14th to Monsr. Croisot, sometime 
since surrendered to the .United India Company of France, upon which they build 
their title to the Mississippi. Many other instances of like nature might be given, were 
they necessary to the present purpose ; but these two, which comprehend almost all 
your Majesty's dominions in America, may be sufficient to shew the unlimited inch- 
nation the French have to encroach upon your Majesty's territories in those parts. 

However, as the French are convinced that a charter without possession can never 
be allowed by the law of nations to change the property of the soil ; they have employ- 
ed another artifice, and without embarrassing themselves about former disco veriea 
made by the subjects of other Princes, have built small forts at the heads of lakes and ri- 
vers along that vast tract of land from the entry of the River St. Lawrence to the embou- 
chure of the Mississippi into the Bay of Mexico ; not so much with the intention pro- 
bably to bound their own territories, as to secure what they have already got, till a- 
more favourable juncture shall give them occasion to make further intrusions upon 
their neighbours. And if the late war in Europe, where the Allies made so successful 
efforts against the exorbitant power of France, had not found Louis the 14th employ- 
ment at home, it is very likely the French would have been much more formidable: 
than they now are in America. Notwithstanding the treaty of neutrality for those 
parts made in London in 1686, ought to have secured to Great Britain the several colonies, 
whereof your Majesty's royal predecessors stood possessed at the time of making the 
said treaty, but the little regard the French have had to that treaty will evidently appear 
by the evasions and frivolous pretences set on foot by their Ministers during the debate 
in the year 1687 at London, where the Lords Sunderland, Middleton and Godolphin were, 
appointed by King James to confer with the then French Ambassadors, Monsr. de Bar- 
rillon and the Sieur Dusson de Bonrepeaux concerning the boundaries of the Hudson's 
Bay Company, and although that Conference terminated in the„aforesaid treaty of 
neutrality, together with a resolution of settling the boundaries between the English 
and French colonies in America by proper commissaries, which resolution has since 
been enforced by the 10th article of the Treaty of Utrecht ; yet the French could never 
be induced to enter sincerely upon so necessary a work, notwithstanding commissaries 
were lately appointed for that purpose, and met with others deputed by the French 
Court at Paris. -London Doc. 22 ; Sept. 8,1721 ; N. Y. Hist. Col. vol. 5. pp. 619-20. 



10 WESTERN BOUNDARY OF ONTARIO. Part L 

In 1744 the Treaty of Lancaster, and in 1752 the Treaty of 
Logstown, were made, renewing the provisions of former trea- 
ties between England and the Iroquois, and large tracts of 
land were granted to various companies for purposes of colo- 
nization in the Valley of the Ohio. ^ 

Upon the 10th of May 1744, Vaudreuil wrote to the G-ov- 
ernment of France, pointing out the danger to the French pos- 
sessions of allowing the English to build trading houses among 
the Creeks. 

In the summer of 1749, Grallissoniere,who was then Governor 
of Canada, resolved to place in the valley of the Ohio, eviden- 
ces of the French possession of the country, sent Louis Cele- 
ron with a company of soldiers to bury lead plates, in the 
mounds, and at the mouths of rivers, on which were written 
the claims of the King of France to the river and land on 
both sides, as a possession enjoyed by preceding kings, main- 
tained by their arms, and by treaties ; especially by the trea- 
ties of Byswick, Utrecht, and Aix-la-Chapelle. 

When the English colonists crossed the mountains, the 
French were collecting military stores on Lake Erie. They 
erected a fort at Presqu'Isle in the north western part of Penn- 
sylvania, Fort Le Bceuf on French Creek, Fort Yenango at the 
junction of French Creek with Alleghany river, and nearly 
opposite to Fort Yenango, Fort Michault, and Fort Du Quesne 
at the junction of the Alleghany and Monongahela rivers. All 
these forts were erected in 1753 and 1754. Washington was 
sentbyDinwiddie, the Governor of Virginia, to the commander 
of the French forces in the wilderness of North-western 
Pennsylvania, to demand from them a statement of their 
object in invading the British possessions ; to ascertain their 
numbers on the Ohio ; how they were likely to be assisted 
from Canada; what forts they had erected, and where; 
how they were garrisoned; and what had given occasion 
to the expedition.! These instructions were given in Oc- 

* Early History of Pennsylvania, App. 12. Plain Facts, pp. 22-3. 
+ Spark's Washington, Vol. 2. 



Part I. WESTERN BOUNDARY OF ONTARIO. 11 

tober, 1753. During Washington's absence, the Ohio Company, 
which had, five years before, received from the British 
Government, a large grant of land, west of the mountains, 
had taken measures to fortify and settle the point of land be- 
tween the Alleghany and Monongahela rivers upon which 
Fort Du Quesne was soon after erected. But when "Washing- 
ton returned with the letter of St. Pierre, the commander of 
the French troops, it was evident that he was come to hold the 
country by force, and victory alone could restore it to the Eng- 
lish colonists. The Virginians prepared for active hostilities, 
but the legislatures of New York and Pennsylvania, when 
called upon for aid, began discussing the question whether the 
French had really invaded his Majesty's dominions.* In the 
spring of 1754, Contrecceur, who had become commandant of 
the French forces upon the Ohio, demanded the surrender, 
without delay, of the unfinished fort of the Ohio Company. 
He asked by what authority they had come to fortify them- 
selves within the dominion of the king, his master; he declared 
their action to be so contrary to the treaty of Aix-la-Chapelle, 
that he knew not to whom to impute such usurpation, as it 
was incontestible that the lands along the Beautiful (Ohio) ri- 
ver belonged to the King of France. Ensign Ward, who, with 
a few troops, was then in charge of the fort, was ordered to 
retreat peacefully with his men, from the lands of the French 
King, and not to return. f Ward surrendered the fort, and re- 
tired up the Monongahela. The fort of the Ohio Company was 
completed by the French, and was, while in their possession, 
known as Fort Du Quesne. After this came the defeat and 
death of Jumonville, and the surrender of Fort Necessity by 
Washington.^ 

Both the governments of England and France expressed 

* Proud's History of Pennsylvania : New York Colonial Documents : London Do- 
cuments. 

+ The letter of Contrecceur will be found in Craig's History of Pittsburg, also i 
the Pownall Manuscripts in the Library of Parliament, Canada. 

J Spark's Life of Washington, Vol. 2. 



12 WESTERN BOUNDARY OF ONTARIO. Part i. 

their desire for peace. In January, 1755, France proposed to 
restore everything to the state it was in before the last war, 
and to refer all disputes to the Commissioners at Paris. On the 
22nd, England replied that the west of North America must be 
left as it was at the treaty of Utrecht. On the 6th of Febru- 
ary, France answered that the claims formerly put forward by 
England were untenable, and proposed that the English 
should withdraw east of the Alleghany mountains, and the 
French to the west of the Ohio river. No answer was made 
to this proposition until the 7th March, when it was agreed to 
by England, provided France would destroy all her forts upon 
the Ohio and its branches. This the French Government re- 
fused to do.^ It was at this time rumoured, that, in case of 
war, the Indians, heretofore allies of England, would side with 
France ; and French forts along the Ohio and its tributaries, 
would have enabled both French and Indians to overawe the 
more western of the English settlements. This was a propo- 
sition to make the country between the mountains and the 
Ohio, neutral territory, which France wished to remain in a 
condition to control. The two Governments failing to agree 
upon a conventional boundary, the English G-overnment stood 
by what they regarded as their rights, recognized by France 
in the treaty of Utrecht, in which the Five Nations are declared 
to be under the protection of G-reat Britain ; and in a memo- 
rial delivered to the Duke Mirepoix on the 7th of June, 1755, 
they observe : " As to the exposition which is made in the 
French memorial of the 15th Article of the Treaty of Utrecht, 
the Court of G-reat Britain does not think it can have any 
foundation, either by the words or the intention of the 
Treaty. 

" The Court of Great Britain cannot allow of this article as 
relating only to the persons of the savages, and not to their 
country. The words of the Treaty are clear and precise, 
that is to say, the Five Nations or Cantons are subject to the 

* Stanley to Pitt. Thackeray's Chatham, Vol. 2. p. 581. Instructions to Varin, N. 
Y. Paris Documents 11, 2. Instructions to Vaudreuil, N. Y. Paris Doc, 10, 8. 



Part I. WESTERN BOUNDARY OF ONTARIO. 13 

dominion of Great Britain, which, by the received exposition 
of all treaties, must relate to the country as well as to the 
persons of the inhabitants ; it is what France has acknow- 
ledged in the most solemn manner. She has well weighed 
the importance of this acknowledgment at the time of sign- 
ing the Treaty, and G-reat Britain can never give it up. 
The countries possessed by these Indians are very well 
known, and are not at all so undetermined as it is pretend- 
ed in the memorial ; they possess and make them over, as 

other proprietors do in all other places 

Whatever pretext might be alledged by France, in consider- 
ing these countries as the appurtenances of Canada, it is a 
certain truth that they belonged, and (as they have not been 
given up or made over to the English) belong still to the 
same Indian nations, which by the 15th article of the Treaty 
of Utrecht France agreed not to molest : nullo in posterum 
impedimento, aut molestia afficiant. 

" Notwithstanding all that has been advanced in this arti- 
cle, the Court of G-reat Britain cannot agree to France hav- 
ing the least title to the Eiver Ohio and the territory in 
question. 

" Even that of possession is not, nor can it be alleged on 
this occasion, since France cannot pretend to have had any 
such before the Treaty of Aix-la-Chapelle, nor since, unless 
it be that of certain forts unjustly erected lately on the lands 
which evidently belong to the Five Nations, or which these 
have made over to the Crown of G-reat Britain or its subjects, 
as may be proved by treaties and acts of the greatest au- 
thority. What the Court of G-reat Britain maintained, and 
what it insists upon, is, that the Five Nations of the Iro- 
quois acknowledged by France are, by origin or by right 
of conquest, the lawful proprietors of the Eiver Ohio and the 
territory in question. And as to the territory which has 
been yielded and made over by these people to G-reat Bri- 
tain, which cannot but be owned must be the most just and 
lawful manner of making an acquisition of this sort, she re- 



14 WESTERN BOUNDARY OF ONTARIO. Pabt l 

claims it as belonging to her, having continued cultivating* 
it for above twenty years past, and haying made settlements 
in several parts of it, from the sources even of the Ohio to 
the Pichawillanes, in the centre of the territory, between 
the Ohio and the Wabache." 

In the war which followed, the French proved that they 
knew best how to manage the Indians, and they succeeded in 
a way the English were never able to rival, in attaching the 
Indians to their cause. The Indians said that the French 
treated them kindly, while the English settled upon their lands 
for their own benefit, spoiled their hunting grounds, and 
when they asked for arms and aid, forsook them, and left them 
exposed to their enemies.^ Both Washington and Braddock 
received their offers of assistance coldly, and treated them as 
slaves.f The French, on the contrary, appeared among them, 
not so much as masters, as companions and friends. When 
peace with France was concluded, the Indians under Pontiac 
were forming themselves into a confederacy, embracing all 
the tribes from the Susquehanna to the head waters of the 
Mississippi, for the purpose of holding the entire country west 
of the Alleghany mountains. "Be of good cheer, my fathers," 
said the tribes of the west to the French commander of Fort 
Chartres, in Illinois, " do not desert thy children ; the English 
shall never come here so long as a red man -lives. Our 
hearts are with the French ; we hate the English, and wish 
to kill them all. We are all united ; the war is our war, 
and we will continue it for seven years. The English shall 
never come into the west." The Indians were determined 
to destroy the forts, and the weak and scattered garrisons 
found throughout their dominions. Fort Sanduskey, Fort 
Miami, at the head of navigation upon the Miami river, Fort 
Owatanon in Indiana, Fort Mackinac, the Fort on the St. Jo- 
seph river, south of Lake Michigan, Forts Presqu'Isle, Le 

* Chief of the Iroquois at Easton, 1758. 

f Thomson's Inquiry into the Causes of the Alienation of the Delawares and Sha- 
wanese . London, 1758 ; and Craig's Olden Time. 



part I. WESTERN BOUNDARY OF ONTARIO. 15 

Boeuf, and Venango, were all taken by the Indians, and most 
of the garrisons were massacred.* Forts Pitt and Detroit had 
to endure terrible sieges ; and it was not until they were in- 
formed by Noyen, the French commandant in Illinois, that 
France was conquered, that Canada would remain in the 
possession of the English, and that the French could not come 
to their assistance, that they were disposed to make peace.f 
It was not until the close of Pontiac's war that the English 
could accept the surrender of the Illinois country. 

The long-continued complaints of the Indians before the 
war of Pontiac made a strong impression upon the minds of 
English statesmen, and led to a change in the conduct of In- 
dian affairs. They had been before removed from the super- 
vision of the Colonial Governments ; and when the conquest 
of Canada was completed, and the Treaty of Paris ratified, 
there were men in England, among whom was Lord Hillsbo- 
rough, who were (both to avoid trouble in the future with the 
Indians, and because of the spirit of independence manifested 
by the colonists,) opposed to permitting settlements to be 
formed beyond the Alleghanies ; and this was declared, by 
the proclamation of the 7th of October, 1763, to be, for the pre- 
sent, the policy of the G-overnment. That proclamation 

* One only of the forest garrisons escaped, by the good conduct and address of its 
commandant. Lieutenant Gorell, in command of Green Bay, devoted himself to the 
task of conciliating the neighbouring savages. The Menemonies were sharers in the 
conspiracy, but they were attached to Gorell, and delayed the execution of the work 
assigned to them. On hearing of the fall of Mackinaw, Gorell called a council of their 
chiefs, told them he was going thrther to punish the enemies of his king, and offered to 
leave the fort in the meantime in their care. The chiefs were divided. The warriors 
weie waiting to strike the meditated blow ; but providentially at this juncture a depu- 
tation of the Dacotahs appeared to denounce the vengeance of that powerful confede- 
racy against the enemies of the English. The Menemonies laid aside their warlike 
designs. Gorell and his garrison passed down the bay, and along the lake to Macki- 
naw, under their escort, ransomed Ethrington and twelve of his men, and passed, by 
way of Lake Huron and the Ottawa river, to Montreal. — Albach's Annals of the West, 
pp. 168, 169. 

f See Bancroft's History of the United States, vol. 5, chap. 7, and Parkman's His- 
tory of the Conspiracy of Pontiac, where the authorities are cited. Gayarre attack* 
Noyen for his humanity. 



16 WESTERN BOUNDARY OF ONTARIO. Part L 

caryed out of Canada the Province of Quebec. It annexed 
Oape Breton and Prince Edward's Island to Nova Scotia. It 
divided the Province of Florida, which had been ceded by 
Spain, and added to the western part, territory acquired from 
France by the Treaty of Paris. It added to the Government 
of G-renada the Grenardines, Dominico, St. Yincent and 
Tobago Islands. It annexed to the Province of Georgia all 
the lands lying between the Rivers Altamaha and St. Mary's. 

General Murray advised the English Government to make 
Canada a military colony, and to extend it westward to the 
Mississippi, in order to overawe the older colonists.* Shel- 
burne favoured the boundaries which were afterwards set 
forth in the proclamation.! Egremont rejected the proposi- 
tion, and insisted on the Mississippi as the western bound- 
ary. J Shelburne adhered firmly to his opinion, and after consi- 
derable delay, his view for a time prevailed. § The Earl of 
Egremont, on the 19th of September, informed the Lords of 
Trade that "His Majesty is pleased to lay aside the idea of 
including within the government of Canada the lands which 
are to be reserved, for the present, for the use of the In- 
dians."** 

Gol. George Crogan, the Deputy of Sir ¥m. Johnson, the 
Northern Superintendent for Indian affairs, having gone to 
England in 1764, was recommended by Sir William Johnson 
to the Lords of Trade and Plantations as a person whose tho- 
rough acquaintance with Indian matters, would enable him to 
impart to the Board much valuable information.-)- f I find 
among the papers of the Lords of Trade and Plantations, a 

* M. Frances au Due de Choiseul, 2 Sep., 1768. 

t Lords of Trade to Secretary of State, 8th June, 1763. 

X Secretary of State to Lords of Trade, 14th July, 1763. 

§ Lords of Trade to the Secretary of State, 5th August, 1763. Secretary of State 
to the Lords of Trade, 19th Sep., 1763. 

** The king said Lord C. J. Mansfield had advised him to show favour to Shelburne 
in order to play him and Egremont against each other, and by that means keep the 
power in his own hands. — Grenvlllc papers, vol. 2, p. 238. 

if See Simcoe Papers, Mss., vol. 1, Library of Parliament, Canada. 



Part I. WESTERN BOUNDARY OF ONTARIO. 17 

letter from Col. Orogan, which is not dated, but which, it is 
highly probable, was written at this time. He therein sets 
forth what he considers the best plan of dealing with the In- 
dian Territories. He says, " That a natural boundary should 
be made between them (i. e. the Indians,) and us across the 
frontiers of the British Middle Colonies, from the heads of 
the River Delaware to the mouth of the Ohio, where it emp- 
ties into the Mississippi ; that the lands west of such a line 
should be reserved for the hunting grounds of the Six Na- 
tions, and the several tribes dependent on them, and that a 
reasonable consideration be given them as they are the ori- 
ginal proprietors of that tract of country, for all the land 
east of such boundary. This, in all probability, may be 
effected, and is the likeliest method to remove all suspicions 
of us. 

" The Indians, before the late war or the conquest of Que- 
bec, considered us in the light of a counterpoise to the power 
of the French, their ancient enemies, and were steady friends 
of the English on that account ;* but since the reduction of 
Canada, they consider us in a very different and less favour- 
able light, as they are now become exceedingly jealous of 
our growing power in that country. It is not necessary to 
enter into any part of our conduct towards them since the 
reduction of Canada, which might have raised their jealous- 
ies, or whether the French used any measures to spirit them 
up to what they have done ; we know them now to be a 
very jealous people, and to have the highest notions of liber- 
ty of any people on earth, and a people who will never con- 
sider consequences where they think their liberty likely to 
be invaded, though it may end in their ruin ; so that all that 
can be done now is to prevent such a defection of the In- 
dians for the future, by the boundary and good treatment. 

" By the concessions made by his Majesty, at the late Treaty 
of Peace, the country lying west of the Ohio to its mouth, and 
up the Mississippi to its sources, appears to be the boundary be- 

* Mr- Crogan here refers to the Iroquois, Delaware and Shawanese Indians. 
C 



18 WESTERN BOUNDARY OF ONTARIO. Part i# 

Iween the French and us, in that part of the country, and of 
course become our frontiers ; as the west side of the Mississippi 
will no doubt be settled by the French.* I would offer to your 
Lordship's consideration whether it would not be good policy 
at this time, while we certainly have it in our power, to se- 
cure all the advantages we have got there by making a pur- 
chase of the Indians inhabiting the country along the Mis- 
sissipi from the mouth of the Ohio up to the sources of the 
Eiver Illinois, and there plant a respectable colony in order to 
secure our frontiers and prevent the French from any at- 
tempt to rival us in the fur trade with the natives, by draw- 
ing the Ohio and Lake Indians over the Mississippi which 
they have already attempted by the last accounts we have 
from Detroit. From planting this new colony, many great 
advantages would arise to this kingdom, as well as to 
his Majesty's subjects in North America; it would extend 
trade and commerce with the furthermost nations of Western 
Indians hitherto unknown to us, which would enable the trad- 
ing people in the colonies to import more of the manufactures 
of this kingdom than they have heretofore done, which is 
an object of the greatest consequence to a trading people; 
it would extend his Majesty's settlements in America and 
make his subjects appear more formidable in the eyes of the 
Indians, which is now become abolutely necessary, in order 
to preserve the peace between them and us; it would cut 
off all the communication between the French and those na- 
tions settled over the large tract of country on this side of the 
Mississippi,, and gives us the absolute dominion over all the Up- 
per Lakes — Huron, Michigan and Superior, and bids fair to 
give a lasting peace to all his Majesty's southern colonies : be- 
sides, from this colony, in a very few years we should be 
able to supply with provisions of every kind the several 
posts or marts that may be erected for trade with the natives 
on much easier terms, than they have or can be supplied 

* This observation fixes the date of this communication, as it became known in 1765 
that France had ceded the country west of the Mississippi to Spain. 



Part I. WESTERN BOUNDARY OF ONTARIO. 19 

from any of our colonies. At present it may be objected that 
the establishing such a colony, so far from the sea, w'll be at- 
tended with too great an expense to the nation, which may be 
easily answered. The fertility of the country and the fine- 
ness of the climate is now known to us which is sufficient 
to encourage industrious people to settle in it in a very little 
time without any expense to the nation, or hindrance to the 
growth of the present colonies, and I dare say that people 
enough will be found that will undertake it." * 

There is one part of Col. Crogan's recommendation which 
was scarcely practicable at the time it was made — that relat- 
ing to the Indian reservation, and it is evident that he was 
not aware of the extent to which the Crown had already alie- 
nated lands within the limits he proposed to reserve for the 
Six Nations. Immediately after the treaty of Logstown, in 
1748, Lee and Washington of Virginia, Hanbury of London, 
and others, formed an association, called the Ohio Company, 
and petitioned the king for a grant beyond the mountains. 
The application was approved of, and the G-ovemment of Vir- 
ginia was ordered to make a grant of 500,000 acres, within the 
bounds of that colony. Of this [grant, 200,000 acres were to 
be at once located by the Company; and if one hundred fami- 
lies were settled within seven years, the grant was to be free 
from quit rent for ten years. The Company agreed to build a 
Fort sufficient for the protection of the settlement. Other com- 
panies were formed, about the same time, within the Province 
of Virginia, to colonize the "West. On the 12th of June, 1749, 
800,000 acres were granted to the Loyal Company, from the line 
of Canada on the North and West. In October, 1751, 100,000 acres 
were granted to the G-reen Briar Company. In 1757, the 
books of the Secretary of Virginia show that three millions of 
acres had been alienated beyond the Alleghaney Mountains. 
The report of Blair, the Clerk of the Virginia Council (1768 or 
1769,) states that most of the land grants, west of the mountains 
within that Province, were made before 1754. f 

* New York Historical Documents, vol. 7, pp. 603, 604. 
+ Quoted by Albach Western Annals, p. 129. 



20 WESTERN BOUNDARY OF ONTARIO'. Pakt i:. 

As soon as Fort Du Quesne had fallen, the border settlers of 
Pennsylvania and Virginia, who had been driven from their 
homes, returned. In 1760, the Ohio Company began again to 
carry out their plan of settlement. They once more sent to> 
England, for such directions to be given to the Government 
of Virginia, as would enable them to do so. 

At this time, General Monkton, by a treaty at Fort Pitt r 
obtained leave from the Indians to establish posts within 
their unceded territories, with land enough about each post 
to raise corn and vegetables for the subsistence of the garri- 
son * 

In the year 176 4-, the English Ministry had in contemplation 
an Act for the proper regulation of trade with the Indians, and 
for raising a fund, by a duty upon the trade, for the support of 
the officials of the Indian Departments. They also proposed 
where and how the trade was to be carried on. They had re- 
solved on acquiring more territory from the Indians, so as to 
remove the boundary between the colonists and the Six Na- 
tions beyond the lands upon which any white man had a claim. 
Upon the Indian side of this new boundary, no settlements 
were to be permitted. In consequence of this determination,, 
instructions were transmitted to Sir "William Johnson, direct- 
ing him to call a council of the Indians, and informing him that 
a boundary might be ultimately established west of the terri- 
tory upon which any claims had been created by grants from 
the Crown, or by actual occupation. Beyond the boundary 
so established by treaty with the Indians, no white man was 
to be allowed to settle. f 

With a view to giving effect to this policy, Sir ¥m. Johnson r 
the Northern Superintendent, was instructed to convoke the 
Six Nations, and to submit to them the proposition for a new 



* Craig's Olden Time, vol. I. : Plain Facts, p. 120. 

t Franklin's Reply to the reports of the Lords of Trade and Plantations, 1772 — 

Spark's Franklin, vol. 4. The Lord of Trade to Sir W. Johnson, N. Y. Hist. Doc. 
vol. 8, pp. 037 et seq 



y ART i. WESTERN BOUNDARY OF ONTARIO. 21 

boundary.* A conference was held with them at John- 
son's Hall, in May 1765. Sir William informed the Indians 
that the king, whose generosity and forgiveness they had al- 
ready experienced, being very desirous of putting an end to 
the disputes between them and his people, concerning lands, 
and to do them strict justice, had fallen upon the plan of a 
boundary between them and his people, as the best method of 
accomplishing this object; he told them that "the settling of 
such a division line will be best for both white men and Indians, 
and he hoped it would be such a line as would best agree 
with the extent and increase of each Province : he wanted to 
know in what manner they would choose to extend it, and what 
they would heartily agree to, and abide by, in general terms." 
He said he would consult the governors of the Provinces in- 
terested as soon as he was fully empowered ; and that when- 
ever the whole would be settled, and that it appeared that they 
had so far consulted the increasing state of the colonists as to 
make any convenient cessions of ground where it was most 
wanted, that then they would receive a considerable present 
in return for their friendship.f 

The Indians agreed to the proposition of a boundary line. 
Within three years, thirty thousand whites settled beyond 
the mountains. A change of administration took place 
in England. The contemplated Bill for establishing the boun- 
dary and regulating the Indian trade was not brought for- 
ward. The letters of Sir William Johnson were mislaid by 
Ministers, and he received no instructions enabling him to 
fulfil his engagements with the Indians .$ The Indians, find- 
ing their country everywhere invaded, began to believe they 
had been duped by the fair promises made by the northern 
superintendent. A border war was imminent. Many settlers 

*The plan of a boundary line having been communicated to the Superintendent for 
Indian Affairs, they have [though not strictly authorized to do so] made it a subject of 
discussion and negotiation with the Indians in their respective districts. Lords of 
Trade to Earl Shelburne. N. Y. Hist. Doc, vol.8., p. 1005. 
*t* N. Y. Hist. Doc. vol. 8, where the correspondence will be found, 
+ See Franklin's letters to his son. Spark's Life of Franklin, vol. 4. 



22 WESTERN BOUNDARY OF ONTARIO. 



Part L 



were massacred. A detachment of soldiers were sent in 1766, 
to Eedstone creek and Cheat river, to remove those who had 
settled at these places.* 

On the 7th of December, 1767, General Gage, the Comman- 
der-in-Chief of the forces in the Colonies, wrote to the Gover- 
nor of Pennsylvania, on the subject of the Indians' grievances, 
and of the disregard paid by the western settlers to the several 
proclamations that had been published ; and he declares that 
the removal of those who had settled on Red. Sandstone 
creek and Cheat river, " has been only a temporary expe- 
dient, as they are returned again to the same encroachments in 
greater numbers than ever." The Governor of Pennsylva- 
niu communicated the letter which he had received from 
General Gage to the Assembly of that Province on the 5th of 
January, 1768, and eight days after, the Assembly presented 
a reply to the Governor ; and, on the 19th, the Speaker and 
the Committee of Correspondence informed the London 
Agents, by order of the House, — "That the delay of the confir- 
mation of the boundary, the natives had warmly com- 
plained of, and that although they have received no consider- 
ation for the lands agreed to be ceded to the Crown on our 
side of the boundary, yet that its subjects are daily settling 
and occupying those very lands." 

The Legislature of Pennsylvania, finding that the Indians 
were becoming more and more inclined to war, on account of 
the unauthorized encroachments upon their lands, and not 
doubting that orders would soon arrive from England to confirm 
the inchoate treaty of May, 1765, voted one thousand pounds 
to purchase presents for the Indians upon the Ohio. A confer- 
ence was held at Fort Pitt, in May, 1768. The Indians said 
that their grievances had long been known, and were still un- 
redressed ; that settlements were still extending further into 
their country, and some of them were upon their war-path; 
that the English had laws to govern their people, and it 
would be a strong proof of the sincerity of their friendship, if 

* Plain Facts. 



Part I. WESTERN BOUNDARY OF ONTARIO. 23 

they would remove the settlers from their lands ; " they will 
have time enough to settle the lands after they have been 
purchased."^ 

As soon as Sir William Johnson received orders from Eng- 
land, relative to a treaty with the Indians, he at once took the 
necessary steps to secure a full attendance. Notice was given 
to the Colonial Governments interested, and to the Six Nations, 
the Shawanese, and the Delewares, and. a Congress was 
appointed to meet in October, at Fort Stanwix. It was at- 
tended by Sir William Johnson and his deputies ; by the re- 
presentatives of Virginia, Pennsylvania, and New Jersey ; and 
by the agents of the traders who had suffered in the war of 
1763. Deputies from the Six Nations, the Delewares, and the 
Shawanese, were present. On the first of November a line 
was agreed upon beginning at the north, where Canada 
creek joins Wood creek, and extending south to the Dele- 
ware river, down that river to Aw an dee creek, up the Creek 
to Burnett's Hills, west along these hills to the Susquehanna, 
and from the nearest fork of the wect branch of that river to 
Kittaning, on the Alleghany, and thence down the Ohio to 
the Cherokee river. At the mouth of Kanawha it met the 
line of Stuart's treaty with the Cherokees. Beyond this line 
Sir William Johnson was instructed not to go, as it was Hills- 
borough's policy to form an unbroken line of Indian frontier, 
as an impassable barrier to the extension of the colonial settle- 
ments, from the Gulf of Mexico to Lake Ontario. But the Six 
Nations claimed the country to the River Cherokee (now 
Tennessee) and it was the intention of Sir William John- 
son to put an end to their title to lands south of the Ohio.f 
One deed for a part of this land was made on the third 

* Proud's History of Pennsylvania, vol. 2. Colonial Archives of Pennsylvania. 

■f See the accompanying map from N. Y. Hist., Doc. vol 8, where the treaty 
also will be found. Bancroft censures Johnson's conduct for treating for territory be- 
yond the Kenawha, and commends the conduct of Stuart, of the Southern Indian De- 
partment. See Bancroft's History, vol. 5, ch. 38. Franklin, on the contrary, con- 
demns Stuart for treating with the Cherokees for any territory north of the Cherokee 
river. See Franklin's reply to the Lords of Trade. Franklin's works vol. 4. 



24 WESTERN BOUNDARY OF ONTARIO. Pabt l 

of November, to "William Trent, attorney for twenty-two 
traders whose goods had been destroyed during the war 
with Pontiac. This tract of land lay between the Mon- 
ongahela and Kanawha rivers, and was called by the traders 
Indiana. Two days later a deed was made to the king 
for the remainder, and the Indians were at once paid. 
The chiefs of the Six Nations signed for themselves, their 
allies and dependents. The Shawanese and Deleware depu- 
ties did not sign these deeds. * By this ^treaty the boun- 
dary of the territory thrown open for settlement along the 
middle colonies, was removed " from the sources of the rivers 
which fall into the Atlantic Ocean, from the west or north- 
west," where it was "for the present" fixed by the procla- 
mation of 1763, to the Ohio river. 

The western boundary of Virginia, became at once the 
engrossing topic to the people of that Province. Lord Bote- 
tourt, who had shortly before become Governor of Virginia, 
cordially seconded their wishes, and declared he was ready to 
put in pledge his life and fortune to carry its jurisdiction on 
the parallel of thirty-six and-a-half degrees North latitude, 
as far west as the Treaty of Fort Stanwix would permit, f 
This boundary he was told would give room for settlement 
for ten or twelve years. J 

The Earl of Shelburne, on the 5th of October, 1767, addressed 
a letter to the Lords of Trade, enclosing memorials and peti- 
tions which had been presented to the king from English 
and Colonial merchants, on the state of the Indian trade. He 
suggested the abolition of the Indian Departments, which had 
been created at a time when a general union of the Colonies, 
under the immediate direction of the king was contemplated, 
with a view, the better to resist the encroachments of France. 
He intimated that it would be well to trust both the Trade and 



* Plain Facts, page G5--104. N. Y. w Hist. Doc. vol 8. Stone's Life of Sir W. Johnson, 
f Botetourt to Hillsborough, 24th Dec, 1768. 

X Lewis & Walker to Lord Botetourt, in Botetourt to Hillsborough, 11th Feb'y, 
1769. Bancroft, vol. 5, ch. 38. 



Part I. WESTERN BOUNDARY OF ONTARIO. 25 

the general management of Indian affairs to the different 
Colonies, subject to the king's disallowance. He then addressed 
himself to the subject of establishing new colonies. He says : 
" His Majesty likewise commands me to refer to your Lord- 
ship's extracts from several letters of Sir Jeffrey Amherst 
and General G-age, recommending the establishment of fur- 
ther new governments, on the Mississippi, the Ohio, and at 
Detroit, at one or more of which places a considerable body of 
French have been suffered to remain since the peace, without any 
form of government ; also, different proposals from private 
people for undertaking establishments in these parts. Your 
Lordships will consider the force of the several arguments 
which are brought in fay our of these settlements, setting 
forth that they will secure to his Majesty's subjects the com- 
mand of the Fur and Peltry Trade, in preference to the 
French and Spaniards, preventing any smuggling with them, 
which, as appears, by the extracts of General Grage's and Mr. 
Crogan's letters, amounts to so considerable a sum annually 
as to become a national object ; that they will be an effectual 
check to the intrigues of those nations, for gaining the affec- 
tions of the Indians ; that they will promote the great object 
of population in general, and increase the demand for the 
consumption of British manufactures, particularly by afford- 
ing to the Americans an opportunity of following their 
natural bent for the cultivation of the lands, and offering a 
convenient reception and cultivation for their superfluous 
hands, who otherwise cooped up in narrow bounds, might 
be forced into manufactures, to rival the mother country — 
an event, which, any other way, it might be difficult to pre- 
vent ; that by raising provisions of all sorts to supply such 
interior garrisons, as it may still be found necesary to keep 
up, they would greatly contribute to lessen the extraordinary 
expense accruing, not only from the establishment of the 
different Forts and the various contingent charges, but also 
from the necessity of transporting provisions as well as stores 
to supply the garrisons from the Provinces on the coast, by 



26 WESTERN BOUNDARY OF ONTARIO. 



Part I. 



the rivers and by the great lakes as well as by the land 
portage, all which not only occasions an accumulated ex- 
pense, but also, often reduces the garrisons to great distress, 
and in case of an Indian war, when alone they can be useful, 
leaving them in a very precarious situation ; that these new 
Colonies will prove in effect a protection and a security to 
the old, forming of themselves an exterior line of defence, 
rendering most of the interior Forts useless, and equally 
contributing to reduce the present Indian and Military Ex- 
pense ; that being situated behind the other Provinces, they 
will be of singular use to keep the Indians in awe, and pre- 
vent their hostile incursions upon the frontiers to the east- 
ward, while those savages who are hemmed in by our 
settlements on both sides, must either become domiciliated, 
and reconciled to our laws and manners, or be obliged to 
retire to a distance. 

" In case your Lordship should think it right to advise his 
Majesty to establish these new governments, you will consider 
whether it will be practicable to fall upon such a plan, as 
will avoid a great part of the expense incurred by the esti- 
mates of the new governments established after the peace."* 

William Franklin, son of Benjamin Franklin, the Governor 
of New Jersey, Sir William Johnson, the Northern Superin- 
tendent of Indian Affairs, General Gage, and several fur-traders 
of Philadelphia, proposed to acquire, for colonization, a great 
portion of the North West Territory, embracing all the country 
from Lake Erie to the Mississippi, North of the Wabash and 
Miami rivers, and south of Fox river and the Wisconsin. 
The tract was estimated to contain sixty-three millions of acres. 
Franklin, who had gone to England to promote the Walpole 
Grant, South of the Ohio, acted as the agent of those who 
wished to undertake the colonization and government of this 
vast extent of territory. And in his letters to his son, extend, 
ing over a period of two years, from April 1766 to April 1768, 
he puts us in possession of the views of Lord Shelbuine, Gene- 

* N. Y., Hist, Doc. vol. 8. 



Part I. WESTEKN BOUNDARY OF ONTARIO. 27 

ral Conway, Lord Clare, and Lord Hillsborough, on the pro- 
priety of establishing new Colonies in the country, acquired 
from France.* 

We learn from these communications that Earl Shelburne, 
who favoured the enterprise, delayed bringing the matter up 
in Council, for more than a year, until he thought the Lords 
of Trade could be induced to make a favourable report. The 
subject was brought under their attention in October, but no 
report was made until the March following. In the mean time 
the affairs of the Colonies were taken from under the control 
of Lord Shelburne, and consigned to a separate Department of 
State, and Lord Hillsborough was made the first Colonial 
Secretary. The changes which at that time took place in the 
Ministry, indicated a change in the Colonial policy. The report 
of the Lords of Trade, when made, was decidedly adverse to 
the policy of establishing new Colonies, and pointed towards 
the adoption of the views expressed by Hillsborough, Murray, 
andEgremont in 1763 — the extension of the Province of Quebec 
to the Mississippi. They say that "the proposition of forming 
inland Colonies in America is, we humbly conceive, entirely 
new, it adopts principles in respect to American settlements 
different from what have hitherto been the policy of this 
kingdom, and leads to a system which, if pursued through 
all its consequences, is, in the present state of that country,, 
of the greatest importance. 

" The great object of colonizing upon the Continent of North 
America, has been to improve and extend the commerce, naviga- 
tion, and manufactures of this kingdom, upon which its strength 
and security depend. 

" 1. By promoting the advantageous fishery carried on upon 
the northern coast. 

" 2. By encouraging the growth and culture of naval stores, 
and of raw materials to be transported hither in exchange 
for perfect manufactures and other merchandise. 



* See Appendix B. , consisting of extracts from these letters. 



28 WESTERN BOUNDARY OF ONTARIO. 



Part I. 



" 3. By securing a supply of lumber, provisions, and other 
necessaries for the support of our establishments in the Ame- 
rican Islands. 

" In order to answer these salutary purposes, it has been the 
policy of this kingdom to confine her settlements as much as 
possible to the sea coast, and not to extend them to places 
inaccessible to shipping, and consequently more out of the 
reach of commerce ; a plan, which, at the same time that it 
secured the attainment of these commercial objects, had the 
further political advantage of guarding against all interfering 
of foreign powers, and of enabling this kingdom to keep up 
a superior naval force in those seas, by the actual possession 
of such rivers and harbours as were proper stations for fleets 
in time of war It was upon these prin- 
ciples, and with these views, that Government undertook the 
settling of Nova Scotia in 1749 ; and it was from a view of 
the advantages represented to arise from it in these different 
articles, that it was so liberally supported by the aid of Par- 
liament. 

" The same motives, though operating in a less degree, and 
applying to fewer objects, did, as we humbly conceive, in- 
duce the forming the Colonies of Georgia, East Florida, and 
West Florida, to the south, and the making those provincial 
arrangements in the proclamation of 1763,* by which the 
interior country was left to the possession of the Indians." 

This policy the Lords of Trade go on to state would be frus- 
trated by forming settlements in the interior. 

" More especially, where every advantage, derived from an 
established government, would naturally tend to draw the 
stream of population ; fertility of soil and temperature of 
climate offering superior incitements to settlers, who, exposed 
to few hardships, and struggling with few difficulties, could, 
with little labour, earn an abundance for their own wants, but 
without a possibility of supplying ours with any considera- 
ble quantities. Nor would these inducements be confined 

* See Appendix F. 



Part 



WESTERN BOUNDARY OF ONTARIO. 29 



in their operation to foreign immigrants, determining their 
choice where to settle, but would act most powerfully upon 
the inhabitants of the northern and southern latitudes of your 
Majesty's American dominions ; who. ever suffering under 
the opposite extremes of heat and cold, would be equally 
tempted by a moderate climate to abandon latitudes pecu- 
liarly adapted to the production of those things which are by 
nature denied to us, and for the whole of which we should,, 
without their assistance, stand indebted to, and dependent 
upon, other countries." 

The Lords of Trade observe that before 1749, the sea coast 
of the empire in America, from the Province of Maine to the 
mouth of the St. Lawrence, had been neglected, although it 
abounded in every species of naval stores : that France had, 
at an immense expense, attempted, by the war which ended 
at that period, to wrest the country from Great Britain ; that 
aware of its great commercial value, the country was held, and 
to further this end, and make the possession more sure, the 
settlement of Nova Scotia had been promoted, though at a 
very great expense to the kingdom ; that in consequence of the 
great commercial advantages to be derived from the settlement 
of the north eastern coast, associations had been formed for 
that purpose. Ten thousand persons had gone from the other 
Provinces to settle in Nova Scotia, who had either engaged in 
the fisheries or become exporters of lumber and provisions to 
the West Indies, and that many of the principal persons of the 
Province of Pennsylvania were engaged in the settlement of 
twenty-one townships of one hundred thousand acres each in 
Nova Scotia ; that the success of these settlements had given en- 
couragement to like settlements in Maine and Massachusetts, 
in the Islands of St. John and Cape Breton, and in the 
Floridas. They say " they are therefore fully convinced, that 
the encouraging settlements upon the sea coast of North 
America is founded in the true principles of commercial po- 
licy ; as we find upon examination, that the happy effects of 
that policy are now beginning to open themselves, in the es- 



30 WESTERN BOUNDARY OF ONTARIO. Part l 

tablishment of these branches of commerce, culture, and 
navigation, upon which the strength, wealth, and security of 
this kingdom depend ; we cannot be of opinion, that it would 
in any view be advisable, to divert your Majesty's subjects in 
America from the pursuit of those important objects, by adopting 
measures of a new policy, at an expense to this kingdom, which 
in its present state it is unable to bear." 

The Lords of Trade next proceed to consider the arguments 
in support of the particular establishments recommended by- 
Lord Shelburne, which they say are reducible to the following 
propositions : — 

" 1st. That such colonies will promote population, and in- 
crease the demand for and consumption of British manufac- 
tures. 

" 2nd. That they will secure the fur trade, and prevent an 
illicit trade, or interfering of French or Spaniards with the 
Indians. 

" 3rd. That they will be a defence and protection to the old 
colonies against the Indians. 

"4th. That they will contribute to lessen the present heavy 
expense of supplying provisions to the different forts and 
garrisons. 

" 5th. That they are necessary in respect to the inhabitants 
already residing in those places where they are proposed to 
be established who require some form of civil government. 

" We admit as an undeniable principle of true policy, that 
with a view to prevent manufactures it is necessary and proper 
to open an extent of territory for colonization proportioned 
to the increase of people, as a large number of inhabitants, 
cooped up in narrow limits, without a sufficiency of land for 
produce would be compelled to convert their attention and 
industry to manufactures ; but we submit whether the en- 
couragement given to the settlement of the colonies upon the 
sea coast, and the effect which such encouragement has 
had, have not already effectually provided for this object, as 



Part I. 



WESTERN BOUNDARY OF ONTARIO. 31 



well as increasing the demand for, and consumption of Bri- 
tish manufactures, an advantage which, in our humble opin- 
ion, would not be promoted by these new colonies, which 
beino- proposed to be established, at the distance of above 
fifteen hundred miles from the sea, and in places which, upon 
the fullest evidence, are found to be utterly inaccessible to 
shipping, will, from their inability to find returns wherewith 
to pay for the manufactures of Great Britain, be probably 
led to manufacture for themselves : a consequence which ex- 
perience shews has constantly attended in greater or less de- 
gree every inland settlement, and therefore ought, in our humble 
opinion, to he carefully guarded against by encouraging the set- 
tlement of that extensive tract of sea coast hitherto unoccupied ; 
which together with the liberty that the inhabitants of the middle 
colonies will have (in consequence of the proposed boundary 
line with the Indians) of gradually extending themselves back- 
wards, will more effectually and beneficially answer the object 
of encouraging population and consumption, than the erection 
of new governments ;^ such gradual extension might through 
the medium of a continued population, upon even the same 
extent of territory, preserve a communication of mutual 
commercial benefits between its extremest parts and G-reat 
Britain, impossible to exist in colonies separated by immense 
tracts of unpeopled desert.f As to the effect which it is sup- 
posed the colonies may have, to increase and promote the fur 
trade, and to prevent all contraband trade or intercourse be 

* This gradual settlement Hillsborough opposed in 1772. See Report of Lords of 
Trade on the application of the Ohio Company. Vol. 10, North American Pamphlets. 

t The colonists were inhibited by law from exporting sugar, cotton, rice, molasses, 
indigo, pitch, tar, turpentine, wool, ginger, masts, yards, bowsprits, beaver, peltry, 
hides, skins, whalefins, and other products of their industry, to any place but Great 
Britain, not even to Ireland. Foreign ships were excluded from colonial ports. In- 
tercolonial trade in wool, or woollen goods was forbidden. An English sailor must 
not purchase woollen clothing beyond the value of two pounds in a colonial port. 
The printing of the Bible in English was prohibited. No American hat could be 
sent from one colony to another, nor could it be loaded on any horse, cart or car- 
riage for conveyance. Slitting mills, steel furnaces, and plating forges to work with 
a tilt hammer, were prohibited. Bancroft, Vol. iv., chap. 12. Eranklin's Letters 
to Shirley. 



32 WESTERN BOUNDARY OF ONTARIO. Part l 

tween the Indians under your Majesty's protection, and the 
French or Spaniards ; it does appear to ns that the extension 
of the fur trade depends entirely upon the Indians being un- 
disturbed in the possession of their hunting grounds ; that 
all colonizing does in its nature, and must, in its consequen- 
ces, operate to the prejudice of this branch of commerce, and 
that the French and Spaniards would be left in possession of 
a great part of what remained, as New Orleans would still 
continue the best and surest market. 

" As to the protection which it is supposed these new colo- 
nies may be capable of affording to the old ones, it will, in 
our opinion, appear, on the slightest view of their situation, 
that so far from affording protection to the old colonies, they 
will stand most in need of it themselves. 

" It cannot be denied, that new colonies would be of advan- 
tage in raising provisions for the supply of such forts and 
garrisons as may be kept up in the neighbourhood of them, 
but as the degree of utility will be proportioned to the num- 
ber and situation of these forts and garrisons which upon 
the result of the present enquiry it may be thought advisable 
to continue, so the force of the argument will depend upon 
that event. 

" The present French inhabitants in the neighbourhood of 
the lakes will, in our humble opinion, be sufficient to fur- 
nish with provisions whatever posts may be necessary to 
be continued there ; and as there are also French inhabi- 
tants settled in some parts of the country, lying upon the 
Mississippi between the Rivers Illinois and the Ohio, it is to be 
hoped that a sufficient number of these may be induced to 
iix their abode, where the same convenience and advantage 

may be derived from them The settlements already 

existing as above described, which being formed under military 
establishments, and ever subject to military authority, do not, in 
ur humble opinion, require any further superintendence than 
that of the military officers commanding' at these posts'' 

No one can read over the various reports of the Lords of Trade 



Part I. WESTERN BOUNDARY OF ONTARIO. 33 

and Plantations to the Committee of the Privy Council, with- 
out being struck with the change that their policy underwent 
between 1748 and 1774. In 1 748 they reported to his Majesty's 
Most Honourable Privy Council, " that the settlement of the 
country lying westward of the great mountains, as it was the 
centre of the British Dominions, would be for his Majesty's 
interest, and the advantage and security of Virginia and the 
neighbouring Colonies." They again reported to the Privy 
Council in favour of this grant to Hanbury, Lee and others, in 
which report they say that they had " fully set forth the great 
utility and advantage of extending our settlements beyond 
the great mountains (which report has been approved of by 
your Lordships). And as by these new proposals there is a 
great probability of having a much larger tract of the said 
country settled than under the former, we are of opinion 
that it will be greatly for his Majesty's service, and the wel- 
fare and security of Virginia, to comply with the prayer of 
the petition." But there was, in truth, some reason for this 
change. The difference was not so great between Lords Hali- 
fax and Hillsborough, as between the years 1748 and 1768. 
England at the one period was competing with France, for the 
possession of the Valley of the Ohio, and the South Shore of 
the St. Lawrence, and the Great Lakes. She felt that her 
claims would be strengthened by the actual occupation of the 
country ; and she threw no obstacles in the way of the adven- 
turous who courted danger, and the enterprising who sought 
wealth. Her colonists were her allies, on the sea coast, and 
beyond the western settlements, they fought with her, and for 
her, and victory crowned their united efforts. They won 
from France a territory far more extensive than that which 
was, before the war, in the possession of the colonists. When 
France had withdrawn from America, the colonists felt less 
dependent upon the mother country. Not a few public men 
in Great Britain declared that it would be for the interest of 
their country, to restore to France the Valley of the St. Law- 
rence ; that their success had destroyed the balance of power 
D 



34 WESTERN BOUNDARY OF ONTARIO. Part i. 

upon the North American Continent; that the colonists, no 
longer requiring their assistance, would soon weary of their 
authority.^ Chatham, Shelburne, Camden and Conway, the 
public men who strove to prevent colonial taxation, one after 
another, ceased to be among the advisers of the Crown. The 
Colonial policy became less and less liberal, and the danger 
which was dreaded, was created by the policy which was pur- 
sued. Ministers undertook to hold the Valley of the Ohio, 
against the colonists, as France had held it twenty years be- 
fore against both. No new colonies were to be formed. The 
climate of the unpeopled West was too favourable, the soil was 
too fertile, and the country was too far away. They would 
too soon cease to be hewers of wood and drawers of water to 
G-reat Britain. They would produce wealth for themselves 
beyond the reach of a parental hand, f 

Lord Hillsborough not only opposed the establishment of 
new provinces north of the Ohio, but sought to prevent the 
colonization of the lands acquired from the Indians by the 
Treaty of Fort Stanwix ; and because his colleagues were not 
willing to go quite so far, he resigned his seat in the Cabinet. 
With the exception of the policy or impolicy of settling this 
purchased district, the views of Hillsborough became the poli- 
cy of the Grovernment that introduced the Quebec Bill. The 
object of that Bill was declared by its promoters- to be — to 
embrace all the French settlements in British America, in the 
new Province of Quebec; to protect the Indians ; to make uni- 
form regulations relating to the fur trade ; to prevent coloniz- 
ation ; and to give to the French population, in the territory 
ceded by France, the rights and privileges guaranteed to them 
by the Treaty of Paris. J The introduction of the Quebec Bill 
proved that the policy which had been pursued, since the con- 
quest of Canada, in dealing with the French population, was 

* See Spark's Franklin. Vol. 4 

f See Lords of Trade Report 1772, on the Walpole Land Grant. N. American 

Pamphlets vol. 10. Library of Parliament. 

X See the preamble and also the speeches of Thurlow and Wedderbnrn, in Appen- 
dix C. Also, Lords of Trade to Sir W. Johnson, N. Y. Hist. Doc, vol. 8. 



Part I. WESTERN BOUNDARY OF ONTARIO. 35 

about to be abandoned. The French had been accused, and 
not without reason, of haying secretly encouraged the Indians 
under Pontiac to make war upon the English, and the in- 
structions to Governor Murray, in 1763, show that the Pro- 
vince of Quebec was to be ruled by an iron hand.* The laws 
under which the inhabitants had been governed, before the 
conquest, were abrogated. A man who was ignorant of their 
language and their ancient laws and usages, was made their 
judge. They were allowed to hold no offices, civil or military. 
It was supposed they were incapacitated on account of 
their religion by the laws of England, which had been intro- 
duced in the gross. The magistrates and the militia officers 
appointed over them, were men who had come to the Pro- 
vince as suttlers to the troops, or traders among the Indians. 
It was said, in defence of the Quebec Bill, which removed the 
disabilities of the French, that the magistrates had rendered 
their powers useful to their business. The French debtor fre- 
quently found himself cited before a justice of the peace, for a 
small sum, and required to make instant payment, at a time 
when it was well known, that payment was impossible, or sub- 
mit to incarceration until his creditor was satisfied; and if the 
debt exceeded two pounds, he could be dragged to Quebec 
from the most distant part of the Province.! " The history of 
the world," wrote Lord Mansfield to Grenville, " don't fur- 
nish an instance of so rash and unjust an act."$ 

When the Proclamation establishing Quebec and the Flori- 
das was published, the English had not yet acquired posses- 
sion of all the French military posts in the ceded territory ; 
and it was not until two years later that St. Ange, the French 
commandant at Fort Chartres, surrendered the Illinois coun- 
try to Captain Stirling, who went thither with one hundred 

* American Archives, fourth Series, where the commission to Murray will be 
found. 

+ North American Pamphlets, vol. 12. Library of Parliament. 

+ For Lord 0. J. Mansfield's letter see appendix D. Letter to Grenville, Gren- 
ville papers, vol. 2., p. 476. 



36 WESTERN BOUNDARY OF ONTARIO. Part u 

soldiers from Fort Pitt * to obtain possession. Major Loftus 
had essayed to go up the Mississippi in the spring of 1764, with 
four hundred men, to accept the surrender, but was prevented 
by an attack of a few Indians upon the banks of that 
river, and he returned again to Mobile. Captain Stirling, 
without delay, published a proclamation from General G-age.. 
setting forth the rights guaranteed to the French inhabitants 
of Canada, by the Treaty of Paris, f Stirling remained but a 
short time, and was superseded by Major Farmer, of whose 
administration of the government little is known. The next 
person who held the office of Commandant in that country, was 
Colonel Reed, who made himself odious to the population, by 
acts of military oppression, occasioned by their ill concealed 
dislike to British authority. On the oth of September 
1768, Lieutenant-Colonel Wilkins, who had been appointed 
by G-eneral Gage, to supersede Colonel Eeed, arrived at 
Fort Chartres, and, in the following month, he issued a pro- 
clamation, by order of G-eneral Gage, establishing a court of 
justice in Illinois, for the purpose of settling all disputes and 
controversies between man and man, and all claims in relation 
to property, both real and personal. Courts were held at Fort 
Chartres once in each month. This system, though accepted 
as preferable to a military tribunal, did not satisfy the people. 
They demanded trial by jury; but this was refused, and it is 
said, the court became unpopular. $ The government of all 
the Indian Territories was under the absolute control of the 
Commander-in-Chief of the King's forces in North America. 
It is not surprising that justice was sternly administered in 
these remote districts, and that commanders were guilty of 
gross abuses, where they could be neither restrained by law 
nor by public opinion. Lord Shelburue informed Dr. Franklin 



* Albach says Stirling went from Detroit. 

t See Appendix E. 

t Albach's Annals of the West ; Brown's History of Illinois ; Monette's History of 
the Mississippi valley; Grayarre's History of Louisiana ; Parkman's Conspiracy of 
Pontiac. 



Part I. WESTERN BOUNDARY OF ONTARIO. 37 

that Major Farmer had drawn £30,000, as extraordinary 
charges, on going to take possession of the Government of 
Illinois.* In April, "1769, we find Colonel Wilkins, of his 
Majesty's 18th Royal Eegiment of Ireland, Governor and 
Commandant throughout the Illinois country," making ex- 
tensive grants of lands to several of his friends in Illinois and 
-elsewhere. " for the better settlement of the Colony, and the 
Governor agreed to be interested to the extent of one-sixth 
part thereof."! Wilkins was the last Governor of Illinois ap- 
pointed by the Commander-in-Chief, at all events, the last of 
whom I have been able to find any account. After 1774, the 
G-overnor of the Illinois country was Lieutenant under the 
Governor of the new Province of Quebec. 

In November, 1773, the year prior to the passage of the 
Quebec Act, the people of Illinois, failing to obtain from Ge- 
neral Gage the reforms in their government which they 
desired, addressed themselves directly to Lord Dartmouth,:}: 
the Secretary of State for the Colonies. He pronounced their 
demand " very extravagant." 

A plan of government was sketched out by the Ministry 
for the Colonies of the west. The people of Illinois protested 
against it. u Should a plan of government so evidently 
tyrannical be established," said Blouin, the agent of Illinois, 
to Lord Dartmouth, " it could be of no long duration." About 
the same time the French inhabitants of old Quebec were 
petitioning the king for a restoration of their ancient laws, 
the toleration of their religion, the removal of their civil and 
political disabilities, and the restoration of its ancient limits. 
The English inhabitants petitioned his Majesty for the main- 
tenance of the English law, and the election of a General As- 
sembly, " as there is a sufficient number of Protestant subjects 
residing in and possessed of real property in this Province, 

* Franklin's letters to his son, October 11, 1767. See extracts in appendix B. 

+ See American State papers, vol. 2. Public Lands, page 180. This volume con- 
tains complete plans of the French settlements in Illinois. 

X Dartmouth to Gage, 4 Nov. 1772 ; Gage to Dartmouth, 6 January, 1773 ; Dart- 
mouth to Gage, 3 March, 1773 ; Daniel Blouin to Lord Dartmouth, 4 Nov. 1773. 



38 WESTERN BOUNDARY OF ONTARIO. Part u 

and who are otherwise qualified to be members of a General 
Assembly/' * 

The people in every part of the territory conquered from 
France, were asking for a change in the systems of govern- 
ment, which had been established by the English. 

At the conqnest, the French population of Illinois was about 
three thousand, f At Yincennes, upon the Wabash, there was 
a colony of between four and five hundred. J Many from the 
villages alongthe east shore of the Mississippi, joined their coun- 
trymen on the other side, before they learned of the cession to 
Spain. || Those that remained remonstrated to General Gage 
against the corruption and favouritism of Wilkins. They asked 
for institutions like those of Connecticut, and declared that no 
irresponsible government could give satisfaction. " A regular 
constitutional government for them," said Gage to Hillsbo- 
rough, " cannot be suggested. They don't deserve so much 
attention." " A regular government for that district," rejoined 
Hillsborough, " would be highly improper." Hillsborough 
suggested their removal to some place within the limits of 
any established colony. § This, however, was impracticable; 
as any attempt to carry out such a policy would have led to 
their settlement beyond the Mississippi ; and an expatriated 
population upon the frontier was to be dreaded. Towards the 
colony at Yincennes the Government could act- upon this 
policy with less hesitation, as the inhabitants were farther 

* See volume 12, North American Pamphlets, Library of Parliament, where 
both petitions will be found ; and also the Masseres' Papers. 

t Martin estimated the population of Louisiana, in 1763, at 13,538. Of whom 891 
were in that part of Illinois, west of the Mississippi. East of the Mississippi, and before 
the French crossed the river to avoid British rule, the population of the several posts 
arxd villages was 3,000. 

X 427. Gage's state of the settlement on the Wabash, 6 January, 1769. 

|| St. Louis was founded by La Clade, 1764 ; D'Emegrant by Florissant in 1766 ; 
Portage des Sioux, eight miles above the Missouri river, in 1766 ; Les Petites Cotes 
(now St. Charles) by Blanchette in 1769 ; and Carondelet, six miles below St. Louis, by 
De Targette in 1767. 

§ No impediment stood in the way of colonising Illinois after 1769. In that year 
an Illinois Indian assassinated Pontiac, and the Illinois Indians were in consequence 
exterminated by some of the northern Tribes. 



PART L WESTERN BOUNDARY OF ONTARIO 39 

away from the border. A proclamation was accordingly 
issued in April, 1772, commanding them to retire within the 
jurisdiction of some one of the colonies. But the people were 
unwilling to expatriate themselves from a country where 
they or their friends had resided for seventy years. Hills- 
borough resigned in August, and his successor, Lord Dart- 
mouth, being a humane man, left them in quiet possession of 
their western homes. * As the breach between England and 
her old colonies widened, the ill-will harboured by English 
officials towards those who had encouraged Pontiac to begin 
his war, died away. 

The petition from the French inhabitants of the old Province 
of Quebec asked, among other things, to have " restored to Ca- 
nada the same limits which it had before, and to include 
the coasts of Labrador in the Province of Quebec, and those 
parts of the upper country which had been taken from it ; 
since it cannot maintain itself without its usual commerce."-f- 

By the Proclamation of 1763, the Province of Quebec was 
carved out of Canada, with the following boundaries : ' Bound- 
ed on the Labrador coast by the Kiver St. John, and from 
thence by a line drawn from the head of that river through 
the Lake St. John to the south side of the Lake Nippissim ; 
from whence the said line crossing the River St. Lawrence and 
the Lake Champlain in 45 degrees of north latitude, passes 

* " The King having become convinced that Hillsborough had weakened the respect 
of the Colonies for a royal government, was weary of him ; his colleagues disliked him 
and conspired to drive him into retirement. The occasion was at hand. Franklin 
had negociated with the Treasury for a grant to a company of about twenty -three 
millions of acres of land south of the Ohio and west of the Alleghanies. Hillsborough, 
from fear that men in the back-woods would be too independent, opposed the project. 
Franklin persuaded Hertford, a friend of the King's ; Gower, the President of the 
Council ; Camden, the Secretaries of the Treasury, and others, to become shareholders 
in his scheme. By their influence the Lords of Council disregarded the adverse report 
of the Board of Trade, and decided in favour of planting the new province. Hills- 
borough was too proud to brook this public insult His system remained behind 

him. When he was gone, Thurlow took care that the grant for the western province 
should never be sealed."— Bancroft, vol. 5, ch. 47. See also Spark's Life of Franklin, 
vol. 4. 

tNorth American Pamphlets, vol., 12 ; also Masseres' Papers. 



40 WESTERN BOUNDARY OF ONTARIO. Part l 

along the High Lands which divide the rivers that empty them- 
selves into the said River St. Lawrence from those which fall 
into the sea ; and also along the north coast of the Baye des 
Chaleurs, and the coast of the Gulf of St. Lawrence to Cape Ro- 
siers, and from thence crossing the mouth of the River St. Law- 
rence by the west end of the island of Anticosti, terminates 
at the River St. John." The remaining portion of the terri- 
tory acquired from France, and not added to West Florida, nor 
to Georgia, was declared, by the same proclamation, " to be re- 
served for the present, under the King's sovereignty and pro- 
tection, for the use of the Indians." The only provision made 
by the proclamation for the government of persons in the In- 
dian country, is that contained in the concluding paragraph, 
which reads as follows : — " And we do further expressly en- 
join and require all officers whatever, as well military as those 
employed in the management and direction of Indian affairs 
within the territories reserved as aforesaid for the use of the 
said Indians, to seize and apprehend all persons whatever 
who stand charged with treasons, murders and other vio- 
lence or misdemeanors, who shall fly from Justice and take re- 
fuge in the said territory ; and to send them under a proper 
guard to the colony where the crime was committed, where 
they shall stand accused in order to take their trial for the 
same." This was simply a provision for the extradition 
of the criminal to the province in which the crime had been 
committed, where the accused would be best known, and 
where the evidence by which he might be convicted or excul- 
pated, would be most likely available. About the government 
of the few scattered colonists nothing is said. They had mili- 
tary governments provided for them by the Commander-in- 
Chief of the army in North America. This system was con- 
tinued north of the Ohio river, until the country was united 
to the old Province of Quebec under the Act of 1774. The 
Quebec Bill was introduced by the Earl of Dartmouth, into the 
House of Lords, on the second of May of that year'. It was 
declared that " a very large part of the territory of Canada 



PART I. WFSTERN BOUNDARY OF ONTARIO. 41 

within which there were several colonies and settlements, 
subjects of France, who claimed to remain therein under the 
faith of the said treaty, were left without any provision being 

made for the administration of civil government therein* 

Be it enacted that all the said territories, islands and coun- 
tries, heretofore a part of the territory of Canada, in North 
America, extending southward to the banks of the Eiver 
Ohio,f and westward to the banks of the Mississippi, and 
northward to the southern boundary of the territory granted 
to the Merchants Adventurers of England trading to Hud- 
son's Bay, and which said territories, islands, and countries 
are not within the limits of the other British Colonies, as al- 
lowed and confirmed by the Crown, or which have been, since 
the 10th of February, 17d3, made a part and parcel of the 
Province of Newfoundland, be and they are hereby during 
his Majesty's pleasure, annexed to and made part and par- 
cel of the Province of Quebec, as created and established by 
the said Royal Proclamation." % 

When the Bill came down to the House of Commons, 
this clause was attacked by Burke, who was, at the time, 
agent for the Province of New York. The boundary 
between New York and Canada was unsettled. The western 
portion of the Province was still the property of the Six Na- 
tions, as recognized by the Treaty of Fort Stanwix ; and it was 
not impossible that unr)er this clause a boundary might be 
established which would take from that Province a large sec- 
tion of country, which its people and representatives held to 



* These words were used by Shelburne in his letter to the Lords of Trade in favour 
of establishing new colonies. 

+ Had this section been enacted in this form, the construction which would make the 
word southward mean due south, would exclude from the New Province all the territory 
outside of the old Province of Quebec, which lies East of a line drawn due north from Pitts- 
burg. 

+ It is important to observe in the changes which were subsequently made in this section 
that all the words after the word Mississippi, were retained as they here stand ; and 
here they, beyond question, apply not to a line but to the country. It is the country 
southward to the banks of the River Ohio, westward to the banks of the Mississippi, &c. 



42 WESTERN BOUNDARY OF ONTARIO. Part l 

be within its proper limits.^ There was always less hesitation 
in altering the boundaries of a Crown Colony than of a propri- 
etary one.f New York was a Crown Colony. It is true that 
it was twice granted by Eoyal Charter to the Duke of York ; 
but when he ascended the throne, his rights, as proprietary 
Governor, were merged in his rights as Sovereign, and it re- 
mained a Colony of the Crown, until it ceased to be a British 
Province. 

I have given elsewhere so much of the debate on the Que- 
bec Bill, as relates to the proposed extension of the limits of 
the Province, that I need not here say anything more to 
show that there was, from the beginning to the close of the 
discussion upon the Bill, no evidence of the abandonment of 
the clearly expressed intention of the Ministry, and the law 
officers of the Crown, to embrace al] the country between the 
Atlantic and the Mississippi, the Ohio and Hudson's Bay terri- 
tories, in the new Province of Quebec.J Mr. Burke declared, 
that under the Bill, " the Crown has the power of carrying 
the greatest portion of the actually settled part of the Province 
of JSIew York into Canada;" that the boundary iine might be 
fixed at the very gates of the City of New York, " and subject 
that colony to the liability of becoming a Province of France.' 
Mr. Burke is careful to put his advocacy of the interests of New 

* It is highly probable that what the Province of New York feared from an un- 
determined boundary on the side of Canada was, that the territory reserved to the Six 
Nations by the Treaty of Fort Stanwix would be included in Canada. The map will 
shew what New York would have lost. 

t With regard to the grants heretofore made by the Governors of Canada adjacent 
to Lake Champlain, and by the G-overnor of New Hampshire to the west of Connecti- 
cut river, I do not conceive that the titles of the present claimants or possessors ought to 
have been discussed or determined upon any agreement or reason drawn from a consid- 
eration of what were or were not the ancient limits of the Colony of New York. Had the 
soil and jurisdiction within the Province of New York been vested in Proprietaries as in 
Maryland, Pennsylvania, Massachusetts Bay, or other Charter Governments, it would 
have been a different question ; but when both the soil and jurisdiction are in the Crown, 
it is, I conceive, entirely in the breast of the Crown to limit the jurisdiction and dispose 
of the property in the soil in such a manner as shall be thought most fit. Earl of 
Dartmouth to Governor Tyson, March 3rd, 1773, New York Hist. Hoc, vol. 8., page 
356-7. 

X See Appendix C. 



PART L WESTERN BOUNDARY OF ONTARIO. 43 

York on grounds of public policy. He says : " It is not a line 
between New York and some other English settlements ; it 
is not a question whether you shall receive English law and 
English government upon the side of New York, or whe- 
ther you shall receive a more advantageous Government 
upon the side of Connecticut ; or whether you are restrained 
upon the side of New Jersey. In all these you still find 
English customs, English juries, and English assemblies, 
wherever you go. But this is a line which is to separate a 
man from the right of an Englishman." He, therefore, insisted 
that the line should be clearly laid down in the Bill between 
the other Provinces and Canada, instead of leaving it to be 
afterwards determined by the King. The only objection 
made by Lord North to Mr. Burke's proposal, was the diffi- 
culty of the undertaking, and the danger of making a mistake 
" by doing at Westminster what could be better done upon 
the ground :" but he added that if any gentleman would find 
a " boundary of certainty, he would accept it." It will be 
seen, both from the discussions, and the amendments propos- 
ed, that there was no attempt to give to the Province less ex- 
tensive limits than the Ministry proposed in the Bill as intro- 
duced. All that Mr. Burke attempted was to lay down a cer- 
tain boundary between Canada and the other colonies. This 
necessitated a considerable change in the phraseology of this 
section, but none in the actual boundaries as first set forth ; 
and whatever doubt may have arisen in consequence of the 
extraordinary construction put upon the Act in DeEienhard's 
case, has been owing to a want of careful attention to the fact, 
that there is but one line described — the boundary upon the 
south, and that the term " northward" is not descriptive of a line 
upon the west, but of " all the territories, islands, and countries 
in North America," from the southern boundary so described 
to the " territories of the Merchants Adventurers of England trad- 
ing in Hudson s Bay." 

It is true that Messrs Townshend, Dunning, Grlynn, Barre, 
and Fox objected to the immense extent of territory which the 



44 WESTERN BOUNDARY OF ONTARIO. Part j. 

Bill would place under French Law and an arbitrary sys- 
tem of G-overnment. They said that to speak of all the vast 
extent of country between the G-reat Lakes and the Mississippi 
river, south to the Ohio, " as heretofore part of the territory of 
Canada," was admitting, in the most solemn manner, after the 
conquest, what both the colonies and Great Britain had always 
denied before ; that, in another war, Canada might be recon- 
quered by France ; and, it was asked, how could England in 
such an event, deny that Canada extended southward to the 
Ohio river? Lord North so far recognized the force of this 
argument, as to propose in place of the words "hereto- 
fore part of the territory of Canada," the words " extent of 
country." Mr. Burke expressed himself dissatisfied with the 
the few verbal changes offered by Lord North, and intro- 
duced an amendment, the object of which was to locate with 
precision the boundary between Canada upon the one side, and 
New York and Pennsylvania upon the other. I need not repeat 
his proposed amendments here ; I have given them in an ap- 
pendix, to this report, of extracts from the "Cavendish debates." 
They certainly are not well drawn, and had they been accepted 
they would not have given such a boundary as Mr. Burke de- 
scribed — "one physically distinguished," "astronomically dis- 
tinguished," " fixed by actual observation, and agreed upon 
by surveyors." To describe a boundary as running " across 
Lake Ontario, to the Niagara river, and from Niagara across 
Lake Erie, to the north-west point of Pennsylvania, and down 
the west boundary of that Province from a line drawn from 
thence until it strikes the Ohio," is not distinguishing it either 
physically or astronomically ; and it was proposing an amend- 
ment which, to say the least, was in some degree, open to the 
same objection which Mr. Burke made to the clause of the Bill, 
as it originally stood. The Solicitor General ( Wedderburn) said 
in reply to those who objected to the extension of the Province, 
that so far as the old English colonists were concerned, he 
thought " one great advantage of the extension of territory 
was this, that they will have little temptation to stretch them- 



PART j WESTERN BOUNDARY OF ONTARIO. 45 

selves northward. I would not say, cross the Ohio, you will 
find the Utopia of some great 'and mighty empire,' I 
would say, 'this is the border beyond which, for the 
advantage of the whole empire, you shall not extend yourselves' 
It is a regular government, and that government will have au- 
thority to make enquiry into the views of native adventurers. 
As to British subjects within the limits, I believe there are not 
five in the whole country.* I think this limitation of the boun- 
dary will be a better mode than any restriction laid upon govern- 
ment. In the grant of lands, we ought to confine the inhabi- 
tants to keep them, according to the ancient policy of the country ;. 
along the line of the sea and the river. ."f This was the policy 
long advocated by Lord Hillsborough, and which it was be- 
lieved, by the promoters of this Bill, could be better accom- 
plished by the adoption of a system of absolute government 
and of French jurisprudence, than by a proclamation prohibit- 
ing settlement within the territory, which, according to the 
political and commercial notions of the times, it was not for 
the interest of the mother land, should be colonized. Through- 
out the discussion there is not the faintest indication, either 
on the part of the Ministry or the majority of the House of 
Commons, of any intention to depart from that policy which 
Ministers aimed at when they proposed to embrace in the 
Province of Quebec the entire Indian territory, " south to the 
Ohio and west to the Mississippi." When the Province of 
Virginia remonstrated against the Act, she assumed that the 
new Province extended westward to the Mississippi ; \ and 
when the repeal of the Act was proposed the following year 
in the House of Lords, it was said that the Province of 
Quebec extended to the Mississippi river ;§ and this, too, was 

*" This is a mistake. Some had purchased from the French in the Illinois country 
when they were removing beyond the Mississippi. See American State Papers, vol. 2, 
p. 113, Public Lands. 

f This proved to be a well-founded opinion, No new grants were made after the 
passage of the Bill. See American State Papers, vol. 2, p. 180, Public Lands. 

% Bancroft, vol.6, ch.15. 

§ See Speech of Lord Shelbunae in the House of Lords, 1775. 



46 WESTERN BOUNDARY OF ONTARIO. Part l 

the view of the Grove rnment, and of the Law Officers of the 
Crown, who supported the Bill, as the first commission to Sir 
Griiy Carleton, after the Act was passed, will show. I can 
discover no grounds for supposing that the western boundary 
was to be a line drawn due north from the junction of the 
Rivers Ohio and Mississippi. There is no word or phrase in 
the section defining the limits of the Province, to warrant such 
a construction. If this section of the Quebec Act was ambi- 
guous, which I think is not the case, there were many reasons 
of public policy, existing at the time, which moved the Govern- 
ment and Parliament to propose this measure, that would have 
been, in part, defeated, had the law been so construed. I have 
assumed that, in the construction of this Act, you are not con- 
fined to the Act itself. It would be unreasonable to apply 
the arbitrary and technical rules laid down by courts in the 
construction of contracts, or even of public statutes regulating 
the private affairs of men, to a Statute like this. A law defin- 
ing the boundaries of a country is as much a matter of state as 
a treaty. It should be dealt with as a state paper, and ought 
to be construed by rules applicable to treaties entered into by 
independent states for a similar purpose. The rules by which 
the true construction of the first section of the Quebec Act is 
to be ascertained, are those which would be followed, by the 
political departments of the Government, if Ontario and Ca- 
nada were separate and independent states.^ In the suit of 

* Chalmer's Collection of Opinions, vol. 2, pp. 345-6. In the case of Marryatt v. 
Wilson. Upon the construction of a treaty between Great Britain and the United 
States, in error in the Exchequer Chamber, Chief -Justice Eyre, after observing that a 
treaty should be construed liberally, and consistent with the good faith which always 
distinguishes a great nation, said that courts of law, although not the expounders of a 
treaty, yet when it is brought under their consideration incidentally, they must say how 
the treaty is to be understood between the parties to the action, and in doing which 
they have but one rule by which to govern themselves. We are to construe this treaty 
as we would construe any other instrument, public or private : we are to collect from 
the nature of the subject, from the words and the context, the true intent and meaning 
of the contracting parties, whether they are A and B, or happen to be two independent 
states. (Bos <& Peel, 436-9.) The authority of a decision can never be broader than 
the facts upon which it is based. This opinion must be taken as limited by the subject 
matter. The treaty was only incidentally in issue, and is then made part of the agree- 



PART j WESTERN BOUNDARY OF ONTARIO. 47 

the Nabob of Camatic against the East India Company (2 Yes. 
jr. 56,) the court said that "In case of mutual treaty between 
persons acting in that instance as states independent of each 
other — and the circumstance that the East India Company 
are mere subjects with relation to this country has nothing 
to do with that — the treaty was entered into with them, 
not as subjects, but as a neighbouring and independent state, 
and is the same as if it was a treaty between two sovereigns, 
and consequently is not a subject of private municipal juris- 
diction. It is not mercantile but political in its nature." 

The fact that Canada includes the Province of Ontario, can- 
not alter the rules of law appropriate in the case. Under our 
Federal system of Government, each has its appropriate sphere 
of separate and distinct political power, marked out for it by 
a supreme law, and is as far beyond the reach of the other, 
" as if the line of division was traced by landmarks and mon- 
uments visible to the eye." =* And hence it is that 
questions of difference as to boundary, or other disputes be- 
tween two provinces, or between Canada and a province, for 
the settlement of which no provision is made by the constitu- 
tion, can only be properly dealt with according to the usages 
of independent nations for an amicable settlement of such 
disputes. 

"The evidence," says Chief Justice Taney, "by which a 
boundary between states must be decided in this court, (U.S. 
Supreme Court) depends upon the law and usages of nations 
in disputes of this kind." f In England the courts have re- 

ment or contract between the parties whose rights are being litigated. In that event, 
the contract is not raised to the dignity of a state paper, but the treaty, for the purpose 
of the suit, is merged into the pact between the parties, and has the same character as 
any other part of the instrument between the same persons. It is only in this way that 
the opinion of Chief Justice Eyre can be reconciled with international law. The court in 
this case can hardly be supposed as laying down broadly a general rule,which would, in 
effect, conflict with a well-settled principle in constitutional law, that where a construc- 
tion has been given to a treaty by the political department of the government, it is the 
duty of the courts to follow it. 

* Ch. J. Taney in Ableman v. Booth, 21 Howard 516. 

t State of Pennsylvania v. the Wheeling^and Belmont Bridge Company, 13 Howard, 
E. 518. 



48 WESTERN BOUNDARY OF ONTARIO. Part r 

ceived evidence to ascertain the boundaries of parishes which 
they have held inadmissible for the purpose of proving the 
limits of private estates. * It is certain that those upon whom 
has devolved the task of determining the construction of trea- 
ties, have not failed to avail themselves of all the light that the 
history of the circumstances which led up to the treaty may 
throw upon any obscure or ambiguous expression it contains. 
They have not hesitated to go outside of the treaty for the pur- 
pose of ascertaining its meaning, f 

And in the construction of a public statute, relating to the 
good government of any portion of the empire, the same lati- 
tude has been claimed. In 1851, when Earl G-rey was Colo- 
nial Secretary, doubts having been expressed by the Governor 
of Antigua as to the proper construction of " An Act to Pro- 
vide for the prosecution and trial in her Majesty's Colonies of 
offences committed within the jurisdiction of the Admiralty," 
he commanded Mr. Merivale to obtain the opinion of the Law 
Officers of the Crown; and Mr. Merivale, in doing so, stated 
that he was directed " to subjoin a paper which was drawn up 
shortly before the passing of the Act, and explanatory of the reasons 
for its introduction]' and this paper the Law Officers perused 
before they gave an opinion upon the scope of the statute they 
were asked to construe. They seem to have dealt with the 
paper as if it were a preamble to the statute.^ 

Earl G-rey would hardly have directed Mr. Merivale to have 
subjoined such a paper had it not been the practice to seek 

* Reed v. Jackson 1 East, 355, 357 ; Doe v. Thomas, 14 East, 323 ; Outram v. More- 
wood 5 Term R. 121,123 ; Nichols v. Parker, and Clothier v. Chapman,note in 14 East R. 
331 ;Morewood v. Wood, note ?in 14 East [R. 327 ; Wells v. Sparke, 1 M & S., 688, 
689 ; Dunraven v. Llewellyn 15, Q. B. 791 ; Daniel v. Wilkin, 12 Eng. L. and Eq. 547. 

t See the correspondence between England and France as to the true construction 
of the Treaty of Utrecht, in relation to the limits of Acadia : between the United 
States and Spain as to the limits of Florida ; also as to the western boundary of Loui- 
siana ; and between the United States and England as to the meaning of the Alabama 
Claims in the Washington Treaty. 

+ On th<! 15th February 1851, Earl Grey directed Mr. Merivale to obtain the opinion 
of the Queen's Advocate Sir J. Dodson, and the Attorney and Solicitor General Sir John 
Romilly and Sir A- E. Cockburn on the power of the Crown to issue commissions 
under 46 Geo. 3. c, 54 notwithstanding 12 and 13 Vict. c. 96 ; and on the 26th of that 



PART l WESTERN BOUNDARY OF ONTARIO. 49 

such aid, for the purpose of ascertaining with greater certainty 
the precise object intended to be accomplished by the statute. 
And this paper contained not reasons set forth by Parliament, 
but by Ministers. It is assumed, considering the relations be- 
tween Parliament and the responsible Ministers of the Crown, 

month they sent to Earl Grey, the Secretary of State for the Colonies, the following- 
answer : 

My Lord,— We were honoured with your Lordship's commands, signified in Mr. 
Merivale's letter of the 15th inst. , in which he stated that he was directed by your 
Lordship to transmit to us the enclosed despatch from the Governor of Antigua. Mr. 
Merivale then stated that Anegada Reef, mentioned in this despatch, is off Anegada, 
one of the Virgin Islands, and a dependency of Tortola ; and that he was to request 
that we would favour your Lordship with our opinion on the following questions : — 

Whether, since the passing of the Act "to provide for the prosecution and trial in 
Her Majesty's colonies of offences committed within the jurisdiction of the Admiralty 
(12 and 13 Vict. c. 96), it remains in Her Majesty's power to issue commissions to the 
colonies as was customarily done under the 46 Geo. 3, cap, 54, for trial of offences spe- 
cified in that Act ? and whether commissions before that Act are still in force ? " 

The parties charged with the offence referred to in the Governor's despatch, were 
so charged within Tortola, which is a colony, having courts of criminal jiistice within 
the meaning of the Act, but to which no commission has ever been issued under the 
46th Geo. 3 c. 54 ; and our opinion was further requested, " whether it was competent 
for the authorities of Tortola to have transferred these parties for trial to any neigh- 
bouring colony to which such a commission has been issued by Her Majesty (if we con- 
sidered such a commission to be still in force) ? " 

Mr. Merivale then stated that he was directed to subjoin a paper which was drawn up 
shortly before the passing of the Act, 12 and 13 Vict., explanatory of the reasons for its 
introduction. The provision mentioned at the end of that paper, for the transmission of 
these persons charged with these offences from one colony to another or to England was with- 
drawn in the course of the discussion on the Bill. 

In obedience to your Lordship's commands we have perused the several documents trans- 
mitted to us, and we have the honour to report that the 12th and 13th Vic, c. 96, ap- 
pears to be an enabling statute, not repealing any authority possessed by the Crown 
prior to it ; and we are therefore of opinion that, since the passing of that Act, it re- 
mains in Her Majesty's power to issue commissions, as was customarily done under the 
46th Geo. 3. c. 54, for the trial of offences specified in this Act, and that commissions 
issued before that Act, are still in force. We think that if the persons. mentioned in 
the despatch of the President of Tortola committed an offence which could be 
tried by the maritime courts of that island, such persons should now be tiied by such 
court ; but if the Governor is convinced of the impossibility of obtaining an impartial 
trial in the colony, we think that it is competent for him to transfer such persons for 
trial to another colony where there is a commission in force. 



The Right Hon. Earl Grey, &c, &c, &c. 
E 



J. DODSON, 

John Romilly, 

A. E. COCKBUEN. 



50 WESTERN BOUNDARY OF ONTARIO. 



Part 



that any formal statement of the policy of a proposed measure, 
relating to the government of any part of the empire, by Minis- 
ters, is, at least, prima facie evidence of the intention of Parlia- 
ment, in the passage of the measure. And it can hardly be 
supposed, that a paper, which was of use to the Law Officers 
of the Crown, in arriving at a proper Understanding of the law, 
would be inadmissible in a court to enable a judge to do the 
same thing. 

Whatever rules, then, courts may have seen fit to adopt, not 
deduced from the "laws" of language, but established for rea- 
sons of public policy, in the exposition of private contracts, or in 
the construction of laws intended to regulate the private affairs 
of men, they have never been regarded as applicable to a law, 
international in its character, as a statute defining the boun- 
daries of a country must be considered. Holding this opinion, 
I have deemed it not improper to state briefly the circumstances 
which ultimately led to the introduction of the Quebec Bill, and 
which serve to make obvious, the end aimed at by the Min- 
isters and the Parliament that carried that measure.* 

Two things are stated in the preamble of the Quebec Act, 

* The Quebec Act has always been understood as extending that Province to the Mis- 
sissippi. It was so understood in England by Ministers as is shown by Sir Guy Car- 
leton's commission. It was so understood by the Opposition, as will be seen from the 
speeches on the proposed repeal of the measure ; and it was so understood at the time 
by the colonists. Bancroft says " The fifth statute (which alarmed and offended the 
colonists) proposed to regulate the government of the Province of Quebec. The 
na-fcion, which would not so much as legally recognize the existence of a Catholic in 
Ireland, for political considerations sanctioned on the St. Lawrence " the free exercise 
of the religion of the Church of Rome, and confirmed to the clergy of that Church 
tbeir accustomed dues and rights." So far the Act was merciful ; but it extended the 
boundaries of the government to the Ohio and the Mississippi and over the vast region 
which included, besides Canada, the area of the present States of Ohio, Michigan, In- 
diana, Illinois, and Wisconsin, it decreed arbitrary rule. The establishment of colo- 
nies on principles of liberty is " the peculiar glory of England," rendering her venerable 
throughout all time in the history of the world. The office of peopling a continent with 
free and happy commonwealths was renounced. The Quebec Bill which so quickly passed 
the House of Lords and was borne through the Commons by the zeal of the Ministry and 
the influence of the King, left the people who were to colonize the most fertile territory 
in the world without the writ of Habeas Corpus to protect the rights of persons and 
without a share of power in any branch of the government. Vol. 6, chap. 52. 



PABT i. WESTERN BOUNDARY OJ?|ONTARIO. 51 

which the authors of that law designedjto'accomplish — to em- 
brace the several colonies and settlements of French, which 
were left without a civil government by the Proclamation of 
the 7th of October, 1763, and to annex to the Province of Que- 
bec upon the east the sedentary fisheries of Canada, which, by 
that proclamation, had been united to Newfoundland, and sub- 
jected to regulations inconsistent with the nature of such fish- 
eries. 

The reason assigned in the preamble for the extension of the 
Province, carved out of Canada by the Proclamation of 1763, 
is, that " a very large extent of country within which there 
are several colonies and settlements of the subjects^of France, 
who claimed to remain therein under the faith of the said 
treaty, was left without any provision being made for the ad- 
ministration of civil government therein," and it will not be 
difficult to show that this object would not have been attained 
by making the western boundary 'of the Province, a line 
drawn due north from the junction of the Ohio and Mississippi 
rivers, as by far the greater number of the French settlers, west 
of the Province formed by the Proclamation of 1763, were 
along the east bank of the Mississippi, and they would have 
been excluded from the Province by a meridional boundary 
upon the west. 

I have been unable to discover anything in the Act fixing 
any limit upon the west short of the Mississippi. There is but 
one boundary line mentioned — that upon the south. This line 
is described from the Bay of Chaleurs to the banks of the Mis- 
sissippi. The first section of the Quebec Act declares that all 
the territories, islands and countries in North America, belong- 
ing to the Crown of Oreat Britain, " northward" from this 
southern boundary, to the southern boundary of the territory 
granted to the Hudson's Bay Company, together with that 
part of Canada which has been made apart of the government 
of Newfoundland, shall be annexed to and made part and par- 
cel of the Province of Quebec. There is no western limit 
named other than the banks of the Mississippi, which are re- 



52 WESTERN BOUNDARY OF ONTARIO. Part Ir 

ferred to as the western terminus of the southern boundary. 
The Mississippi was the western limit of the British pos- 
sessions in that quarter, and the southern boundary was car- 
ried forward to that river, in order to make a boundary, at once 
natural and international, the western limit of the new Pro- 
vince of Quebec. I apprehend that, if those who contend for 
a meridional boundary upon the west, were asked to assign 
some rational explanation for extending the southern boundary 
to the banks of the Mississippi and the borders of the Spanish 
possessions, at that one point, and not elsewhere, they would 
find some difficulty in doing so. It was not necessary to go 
beyond the junction of the Ohio and the Wabash unless for 
the purpose of embracing the settlers of the Illinois country, 
and these would have been as effectually excluded from the 
new Province of Quebec by a line drawn due north from the 
junction of the Ohio and the Mississippi, as they would 
have been by a line drawn due north from the junction of 
the Ohio and the Wabash. The object set forth in the Act, 
as the one Parliament intended to accomplish by its passage, 
was to embrace the several colonies and settlements that 
were left without a civil government by the Proclamation 
of 1763 ; and this would not have been done, if the Missis- 
sippi were not made the boundary upon the west. It has 
been said, that had it been intended to make the Mississippi 
the western boundary of the Province of Quebec, by this 
Act, the words " along the Mississippi" would have been 
inserted after the words "to the banks of the Mississippi, 
and northward." Those who hold this view, assume that 
the word " northward " is used to indicate the direction of 
the western limitary line. But the phraseology of the section 
forbids such a construction. There is but one boundary 
described — that upon the south, and it would be nonsense to 
write " bounded on the south by a line, and northward along 
the Mississippi to the southern boundary of the territory 
granted to the Merchants Adventurers of England trading to 
Hudson's Bav." The whole section is but one sentence, and 



PART L WESTERN BOUNDARY OF ONTARIO. 53 

if we leave out the detailed description of the line by which 
the enlarged Province is bounded on the south, the manner, in 
which the framers of this section, intended to indicate its lim- 
its, will be more apparent. The section will then read — " that 
the territories, islands, and countries in North America, be- 
longing to the Crown of G-reat Britain, bounded on the south 
by a line drawn from the Bay of Chaleurs ... to the 
banks of the Mississippi, and northward to the southern 
boundary of the territory granted to the Merchants Adven- 
turers of England trading in Hudson's Bay, and also all such 
territories, islands and countries which have . . . been 
made part of the G-overnment of Newfoundland be and they 
are hereby made part and parcel of the Province of Quebec." 
It is clear, when we take the primary parts of the sentence, 
that the word " northward" is used to indicate the extension, in 
that direction, of all the country which is bounded on the south 
by the line described. If the use of the words " bounded on the 
south" were not alone sufficient to preclude any other con- 
struction, the absence of any words of departure, such as thence 
or along, would be sufficient to show that the word " northward" 
is not intended to indicate the direction of a line drawn from 
" the banks of the Mississippi." 

But if it were conceded that the word " northward" is used 
in the first section of the Quebec Act, for the purpose of locat- 
ing the western boundary line, neither the usages of our lan- 
guage nor the principles of legal interpretation, would war- 
rant the conclusion, that it makes the western boundary of 
Quebec a meridional line. 

If " northward" or even north indicated an invariable direc- 
tion, we never would have had in our language such expres- 
sions as directly north, and due north. When we speak of a 
line running westward, we do not mean due west ; such a line 
may diverge to the north or to the south of a due west line. All 
that we mean to affirm, is, that such a line is carried, as it is 
produced, farther away from the prime meridian, in a direction 
more nearly west than it is north or south. And so, too, when 



54 WESTEKN BOUNDARY OF ONTARIO. Pajrt i 

we speak of a northward line, we mean aline proceeding from 
a more southern to a more northern latitude ; it is not necessa- 
rily a straight line ; nor a due north line ; it is a line, which, if 
sufficiently produced, must pass through every degree of lati- 
tude. Webster, upon the usage of Bacon and Dryden, defines 
northward as being towards a point nearer to the north than 
the east and the west points ; and this is undoubtedly the sense 
in which it is most commonly used. And it is because this is 
the sense in which this and similar words are used, that we 
may and often do designate by words derived from the cardi" 
nal points of the horizon, the different parts of a country, how- 
ever irregular its boundaries. 

The word northward is indefinite, and requires some quali- 
fying word or circumstance to indicate, with precision, the di- 
rection intended. Did it mean due north, then the expression 
" northward along the Mississippi" would be a manifest sole- 
cism. But we find in the Act the expression " westward along 
the banks of the Ohio" which is a wider departure from a due 
west line, than northward along the Mississippi is from a due 
north line. 

If the word northward, then, is admitted to indicate the di- 
rection of the western boundary line, whether that line is a 
straight or meandering one, whether it inclines to the east or 
to the west of a given meridian, must be determined by the 
manner in which it is employed, and by the intention of the 
law. We have in this section the words " directly west" applied 
to a line along the forty-fifth parallel. We have the word 
44 westward" applied to a line along" the bank of the Ohio. These 
words so used, give us the ideas of the framers of this section 
as to their proper use ; and they indicate in a manner, in which 
there is no room for doubt, what form of expression would 
have been employed had they undertaken to make a mer- 
idional line, the western boundary of the Province.* 

* In the treaties between Great Britain and the United States the words due west. 
are used in those of 1783, 1818 and 1842, to indicate a line produced directly st 
Westward is used in the treaty of 18 16, in the sense of due west, and this is the only 



PjkM , i. WESTERN BOUNDARY OF ONTARIO. 55 

The southern limitary line is carried forward to the banks 
of the Mississippi, and if the ordinary meaning of northward 
was directly north, still the Mississippi river would be held to 
be the boundary, as it is a well settled rule that both course 
and distance yield to natural and ascertained objects.* 

And when a natural boundary is once reached it is to be 
toll owed, unless it can be clearly shown that a departure was 
intended. 

The Proclamation of 1763, by which the old Province of 
Quebec is described, sets forth the limits as follows : — 

" The Government of Quebec, bounded on the Labrador 
coast by the River St. John, and from thence by a line drawn 
from the head of that river through the Lake St. John, to the 
south end of Lake Nipissim ; from whence the said line, cross- 
ing the River St. Lawrence, and the Lake Champlain in forty- 
five degrees of north latitude, passes along the highlands 
which divide the rivers that empty themselves into the said Ri- 
ver St. Lawrence from those which fall into the sea ; and also 
along the north coast of the Baie des Chaleurs and the Gulf 
of St. Law T rence to Cape Rosiers, and from thence crossing 
the mouth of the River St. Lawrence by the west end of the 
Island of Anticosti, terminates at the aforesaid River St. John."f 
This description continued to mark the limits of Quebec for 
eleven years. As the differences between the Government of 
Great Britain and the old Colonies increased, the feeling of 
hostility to the French, as I have already stated, died away. 
The attitude assumed by the scattered settlers in the territo- 
ries of the west, in the war with Pontiac, was forgotten ; and 
the Bill as introduced shows that the intention was to go to 
the Ohio on the south, and the Mississippi on the west ; and 
although the phraseology was changed to give to New York 

instance in which I have found it so used ; but it has this precision given to it by the 
qualifying words " along the 49th parallel of north latitude." In the commission given to 
Lord Dorchester due west is used to define the direction of the southern boundary, west 
ef Lake of the Woods, and northward to define the direction of the western boundary. 

* Preston v. Brewer, 6 Wheat, 580 : 5 Barn and Ad. 43. 

t Appendix F. 



56 WESTERN BOUNDARY OF ONTARIO. Part i. 

a fixed boundary on the west, so that there could be no doubt 
as to its location ; no intention was disclosed, during the de- 
bates upon the Bill, or in the Bill as it ultimately passed, 
to give to the Province other boundaries than those named in 
the Bill as it came down from the House of Lords. 

On the contrary, when we look carefully at the language 
of the Act, we see that it accurately describes the limits 
which the Bill, in its original form, shows that Ministers were 
resolved to establish. The entire section of the Act, de- 
scribing the limits of the Province of Quebec, reads as fol- 
lows : — 

"1. That all the territories, islands and countries in North 
America, belonging to the Crown of Great Britain, bounded 
on the south by a line from the Bay of Chaleurs 

(a) " Along the highlands, (which divide the rivers that 
empty themselves into the Eiver St. Lawrence, from those 
which fall into the sea,) to a point in forty-five degrees of 
northern latitude, on the eastern bank of the River Connec- 
ticut ; 

(b) " Keeping the same latitude directly ivest through the 
Lake Champlain, until, in the same latitude, it meets the 
Eiver St. Lawrence ; 

(c) "From thence up the eastern bank of the said river 
to the Lake Ontario ; 

(d) " Thence through the Lake Ontario, and the^ river com- 
monly called the Niagara ; 

(e) " And thence along by the eastern and south-eastern 
bank of Lake Erie following the said bank until the same shall 
be intersected by the northern boundary, granted by the 
charter of the Province of Pennsylvania, in case the same 
shall be so intersected ; 

(/) "And from thence along the northern and western 
boundaries of the said Province, until the said western boun- 
dary strikes the Ohio ; 

(e. 2.) " But in case the said bank of the said lake shall not 
be found to be so intersected, then following the said bank 



Part ! WESTERN BOUNDARY OF ONTARIO. 57 

until it shall arrive at that point of the said bank which shall 
be nearest the north-western angle of the said Province ; 

(/. 2 ) " And thence along the western boundary of the said 
Province, until it strike the river Ohio ; 

(g.) " And along the bank of the said river westward to the 
banks of the Mississippi ; 

" And northward to the southern boundary of the territory 
granted to the Merchants Adventurers of England trading to 
Hudson's Bay ; and also all such territories, islands and coun- 
tries, which have, since the tenth of February,^ one thou- 
sand, seven hundred and sixty-three, been made part of the 
government of Newfoundland, be and they are hereby, du- 
ring His Majesty's pleasure, annexed to, and made part and 
parcel of the Province of Quebec, as created and established 
by the said Royal Proclamation of the seventh of October, 
one thousand, seven hundred and sixty- three." It will be 
observed that the southern boundary extends along the bank 
of the St. Lawrence, the bank of Lake Erie, and the bank of 
the Ohio river, and to the banks of the Mississippi. 

Now there must have been some reason for using the plural 
form of the word in this one instance, and when we lookinto the 
definitive Treaty of Paris, the intention, I think, becomes ob- 
vious. By that Treaty the middle of the Mississippi was made 
the boundary between the English and the French possessions, 
but the navigation of the whole river from bank to bank was 
free to the subjects of both Crowns ; each had, for purposes of 
navigation and commerce, an easement in the waters of the 
other's half of the river, and a servitude upon its own. The 
G-overnment of each nation could regulate the navigation of 
the river so far as its own subjects were concerned, as abso- 
lutely as if the river had been wholly within its own territory- 
Had the framers of the Bill proposed to exclude the Mississippi 
as they did the Ohio, they would have used the same form of 
expression, and said " to the bank of the Mississippi." Had it 

* This date is obviously a mistake. It is the date of the Treaty of Paris, by which 
the country was ceded to Great Britain. 



58 WESTERN BOUNDARY OF ONTARIO. 



Part I 



been proposed to do nothing more than to make the middle of 
the Mississippi the western boundary, the southern boundary 
would have been extended " along the bank of the Ohio to 
the Mississippi, and thence to the middle of the said river ;" 
but the authors of the Act used another form of expression, 
and they evidently used it for the purpose of placing the navi- 
gation of the river, so far as British subjects were concerned, 
under the Government of Quebec. The English Grove rnment 
were resolved to prevent, if possible, the colonization of the 
country. They had been forced to abandon the policy of ex- 
patriating the French. They did not look for French emigra- 
tion, and they hoped to prevent a further increase of the 
mischief, or what they regarded as such, by preventing the 
colonists from the east of the Alleghanies settling north of the 
Ohio. They felt that two things were necessary to give them 
success— the extension of French law over the entire country, 
and the exclusion of the old colonists from the fur trade of the 
north-west. It was said that the western trade was, contrary 
to law, carried on with New Orleans. This the English Mi- 
nistry were ready to permit, as a lesser evil than colonization. 
They did not feel sure that settlement could be prevented, 
unless the English colonists were excluded from the navigation 
of the Mississippi. They wall knew that an Imperial statute 
would be aslmpotent for this purpose, as the King's Proclama- 
tion had been against the settlement of the valley of the Ohio. 
They knew that the French colonists of the Illinois country, 
wished to retain to themselves the fur trade of the upper Mis- 
sissippi. They had, not long before, shown a desire to have 
the Indian war renewed, to prevent the other colonists from 
engaging in it ; and no other people would have the same in- 
terest in enforcing any measure necessary to this end. As no 
colonial law has any extra-territorial force, had the Quebec 
Act done nothing more than extend the boundary of the Pro- 
vince to the centre of the Mississippi river, the Grovernment 
of Quebec could have had no effective control over the navi- 
gation of the river, as the easement secured to British subjects 



Pam I. 



WESTERN BOUNDARY OF ONTARIO. 59 



in the whole river, would have been beyond its reach in the 
western half. What the Act clearly points to is an intention 
not only to extend the limitary line on the west to the inter- 
national boundary, but also to embrace within the jurisdic- 
tion of the Government of Quebec the navigation of the Mis- 
sissippi river. This view of Imperial policy, is confirmed by 
the correspondence which passed between the Colonial Office 
and various officials in America.^ If this policy was never 
carried out, it was because the Imperial authorities at last 
saw that war with their colonies was imminent, and they 
were not disposed to widen the breach by giving further cause 
for offence. 

The same Government that carried the Quebec Act through 
Parliament, advised the King to commission Sir Guy Carle- 
ton in the following year. Thurlow and Wedderburn were 
still the law officers of the Crown ; and it was evident from 
the boundaries laid down in the Governor's commission, that 
they understood the Quebec Act as extending the Province 
to the Mississippi river. 

The boundaries of the Province, as set forth in the com- 
mission to Sir 'Guy Carleton in 1775, were the following" : 

" Our Province of Quebec in America, comprehending all 
our territories, islands, and countries in North America, 
bounded by a line from the Bay of Chaleurs along the 
highlands which divide the rivers that empty themselves 
into the River St. Lawrence from those which fall into the 
sea, to a point in forty-five degrees of Northern Latitude on 
the eastern bank of the River Connecticut; keeping the 
same latitude directly west through the Lake Champlain, 
until in the same latitude it meets with the River St. Law- 
rence; from thence up the eastern bank of the said river 
to the Lake Ontario ; thence through the Lake Ontario and 
the river commonly called Niagara ; and thence along by the 
eastern and south-eastern bank of Lake Erie, following the 
said bank until the same shall be intersected by the north- 

* Numerous letters of Hillsborough, Dartmouth, Wright, Gage, and others. 



60 WESSERN BOUNDARY OF ONTARIO. Part l 

ern boundary granted by the charter of the Province of 
Pennsylvania, in case the same shall be so intersected, and 
from thence along the said northern and western bounda- 
ries of the said Province until the said western boundary 
strikes the Ohio ; but in case the said bank of the said lake 
shall not be found to be so intersected, then following the 
said bank until it shall arrive at the point of the said bank 
which shall be nearest to the north-western angle of the Pro- 
vince of Pennsylvania; and thence by a right line to the 
said north-western angle of the said Province ; and thence 
along the western boundary of the said Province until it 
strikes the River Ohio, and along the bank of the said river 
westward to the banks of the Mississippi, and northivard 
along the eastern bank of the said river to the southern boun- 
dary of the territory granted to the Merchants Adventurers 
of England trading to Hudson's Bay ; and also all such ter- 
ritory, islands, and countries which have, since the tenth of 
February, 1763, been made part of the Government of New- 
foundland as aforesaid." 

In this commission the word south, which is found in the 
Act, is omitted ; so that, the boundary of the country, which 
Sir G-uy Carleton had authority to govern, could be specifi- 
cally laid down upon the west as well as upon the south, and 
this we see was done with but little departure from the words 
of the statute. 

I have already stated that the Act would not accomplish 
the object set forth in the preamble — of making provision for 
the administration of civil government in the several colonies 
and settlements of French who were not included in the Pro- 
vince of Quebec, established by the Eoyal Proclamation of 
October, 1763, unless the Mississippi was made the western 
boundary. There were at least five, and according to the 
French view six, settlements of French on the east side of 
the Mississippi, in what was called the Illinois country, which, 
though not included in the capitulation at Montreal, were ceded 
by the definitive Treaty of Paris to Grreat Britain. These were 



Part I. WESTERN BOUNDARY OF ONTARIO. 61 

Cahokia, at the mouth of a creek of the same name, about 
three miles from the site of St. Louis ; St. Philip, forty -five 
miles below Cahokia on the Mississippi ; Fort Chartres, about 
seven miles below St. Philip ; Prairie du Eocher, near Fort 
Chartres; Kaskaskias, on a river of the same name, six miles 
from its mouth and fifteen miles south-east of Fort Chartres ; 
and Yincennes upon the "Wabash. According to the repre- 
sentations made by Mr. Pitt to M. Bussy, Yincennes was in- 
cluded in the country surrendered by the Marquis of Yau- 
dreuil to G-eneral Amherst. It is certain, however, that in 
was under the government of the French commandant of the 
Illinois country, and regarded by the French as being within 
that section of the Province of Louisiana, which, before the con- 
quest, was made subordinate to and dependent upon Canada. 
All these places, except Yincennes, are west of a line drawn 
due north from the junction of the Ohio and Mississippi rivers, 
and they formed a majority of the people who were, by the 
Act, declared to have been without any civil government — a 
benefit which the preamble of the Act declares it was design- 
ed to confer upon them by annexing them to the old Pro- 
vince of Quebec. 

The English Ministry were in possession of information as 
to the population of the principal French settlements. Cap- 
tain Pitman, a military engineer, was sent by the British Go- 
vernment to survey the forts, munitions of war, and towns in 
Florida, when the British took possession of that country. 
Having surveyed the fortifications of Pensacola and Mobile, 
he proceeded to survey the posts on the lower Mississippi, and 
reached Illinois in 1766. He published, in London, in 1770, a 
quarto volume, entitled, " The Present State of the European 
Settlements on the Mississippi." He describes the Illinois 
country as the territory which is bounded on the north by 
Illinois river, on the south by the Ohio, on the west by the 
Mississippi, and on the east by the Wabash and Miamis. He 
describes the soil, climate, Indian tribes, and the French settle- 
ments ; and also the agricultural and commercial pursuits of the 



62 WESTERN BOUNDARY OF ONTARIO. Par , L 

people. He gives the population of the villages along the 
Mississippi as follows : Fort Chartres forty families ; Kaskas- 
kias sixty-five families, besides merchants and slaves, and a 
small garrison of twenty-one soldiers ; Prairie du E-ocher 
twelve families; St. Philip sixteen families, and Cahokia forty- 
five families.* 

After the English went into possession of the Illinois coun- 
try, many of the French abandoned their residences, and re- 
moved to the west side of the Mississippi. When the census 
was taken in 1768, it is probable that more than half the popu- 
lation had left. The population of Fort Chartres had dimin- 
ished from 300 in 1764, to 15 in 1768, and St. Philip from 150 
to the same number. The census then taken shows the num- 
ber of inhabitants in the settlements of the west to have been 
as follows : 

Kaskaskias ..- 7?T^. 903 

Cahokia 300 

St. Philip 15 

Prairie du Rocher 125 

Fort Chartres 15 

Total upon the Mississippi* 1358 

Vincennes upon the Wabash* 427 

Oiatenon upon the Wabash 126 

St. Joseph's, S E. of Lake Michigan 90 

Detroitf * 572 

There were a few settlers at Michilimackinac, and a larger 
number in the north-west, beyond Lake Superior, but their 
numbers were not known. These statistics show that the 
most populous of the French colonies west of the old Pro- 
vince of Quebec was that in Illinois, upon the east bank of 
the Mississippi river, whose people had petitioned for the es- 
tablishment of a civil government, whose last Governor, Roch- 
blave, was Lieutenant-Governor under Sir G-uy Carleton, and 
was made by him subordinate to Lieutenant-Governor Hamil- 

* See Appendix G. 

+ See Appendices G. and H. ; also Rogers' Acct. N. A. p. 168 ; Mante's History of 
the War, p. 525 ; Craig's Olden Time, 414 ; Gen. Gage to Hillsborough, 15th May 
1768, and 6th January, 1769. 



Part I. 



WESTERN BOUNDARY OF ONTARIO. 63 



ton, of Detroit. They all dwelt west of a line drawn due north, 
from the junction of the Ohio and Mississippi rivers.* 

It has been suggested that the western boundary under the 
Act of 1774, was neither the Mississippi nor a due-north line, 
but the line marked upon a map which G-eneral Amherst 
said he had received from the Marquis of Yaudreuil, and 
which was in the possession of Mr. Hans Stanley, when at 
Paris, in 1761. Mr. Pitt in a letter to M. Bussy thus describes 
the western limitary line of the country surrendered by the 
capitulation of Montreal : " Canada, according to the line of 
its limits, as traced by the Marquis de Yaudreuil himself, 
when that Governor surrendered the said Province by capi- 
tulation to the British General, Sir J. Amherst, comprehends 
on the one side the Lakes Huron, Michigan and Superior; 
and the said line drawn to the Red Lake takes in, by a serpen- 
tine progress, the Eiver Ouabache ("Wabash) as far as its junc- 
tion with the Ohio, and thence extends itself along the latter 
river as far, inclusively, as its influx into the Mississippi."! 

It is only necessary to observe, that, had it been intended to 
make any such line the western boundary, there would have 
been no propriety in extending the southern limitary line fur- 
ther westward than the mouth of the Wabash. 

That part of the line referred to by Mr. Pitt, from the Wa- 
bash to the Mississippi, could have been drawn but for one 
purpose — to surrender to the English the valley of the Ohio 
upon the south side of that river. According to the represen- 

* See Hutchin's Map. 

t Mr. Pitt to M. Bussy, 17th August, 1701. See Appendix I. 

Note. — This passage is obscure, but I have understood it as best suits the object 
aimed at by Pitt — the surrender of the valley of the Ohio. If the line is understood as 
including the Wabash, &c, on its course to Red Lake, then it must extend northward 
along the Mississippi ; but this would be excluding the valley of the Ohio from the 
surrender, which Mr. Pitt was most anxious to secure, as it was the contested posses- 
sion of this valley which gave rise to the war. The use of the word " inclusively" by 
Mr. Pitt, shows that the Ohio, from the mouth of the Wabash, was included in the sur- 
render by a boundary along its northern bank. The country west of the Wabash was 
not, therefore, included in the surrender to General Amherst. There is no reason to 
believe this line was thought of by the framers of the Quebec Act. The treaty gave 
England a better boundary than she had by Vaudreuil's capitulation. 



64 WESTERN BOUNDARY OF ONTARIO. Part l 

tations of Mr. Pitt the whole valley of the Ohio on both sides 
of the river, as far as the Wabash, and the southern half of the 
the valley, from the Wabash to the Mississippi, was surren- 
dered to G-eneral Amherst. Had it been intended to make this 
line the western boundary, the southern boundary would not 
have been extended beyond the Wabash, for by producing the 
southern boundary to the Mississippi along the Ohio, if this 
line, referred to by Mr. Pitt, marked the western limit of the 
Province, the western boundary would return upon the south- 
ern as far as the Wabash river. It is unnecessary to say any- 
thing further to show that no such line was intended, as the 
western limit, by the authors of the Quebec Act. 

From what I have so far stated, it will be seen that, before 
the seven years' war, the colonists were encouraged to settle 
west of the Alleghany mountains ; that after the Treaty of Pa- 
ris the prevailing policy was to prevent any settlement beyond 
the Ohio ; and the intention of removing the French colonists 
who were settled upon the banks of the Wabash and the Missis- 
sippi, was seriously entertained, and was only abandoned by 
the retirement of Hillsborough from the Government ; that the 
ostensible object of the Quebec Act, was to enlarge the boun- 
daries of Quebec upon the west, by embracing those vast re- 
gions in which French colonists remained, and who had been 
left without any civil government ; that to accomplish this 
object it became necessary to extend the western frontier to the 
Mississippi river ; that the only boundary described in the Act, 
is the one upon the south, which is a line drawn from the sea 
to the frontier of the possessions of a foreign state ; that a boun- 
dary at once natural and political being reached, it ought to be 
followed, unless a different intention is clearly expressed ; that 
when a line on the south is drawn to a natural boundary, and 
it is stated that all the country to the northward is to be em- 
braced within a state or province, it would be a forced con- 
struction which would depart from that natural boundary, be- 
cause some parts of the territory which would be included by it, 
lie farther to the west than the most western limit of the south- 



PART l WESTERN BOUNDARY OF ONTARIO. 65 

ern boundary ; that when the Bill came down from the House 
of Lords to the House of Commons, the Mississippi w 7 as named 
as the limit upon the west; that the phraseology was 
changed, not to give to the Province more contracted limits, 
but to give the exact location of the southern boundary in the 
Act ; that the colonists understood the Act as embracing the 
whole country from the ocean to the Mississippi ; that Lord 
Shelburne and others who moved the repeal of the Act in the 
following year so understood it ; and that the Ministers and 
Law Officers of the Crown so construed the Act is clear from 
the boundaries named in the commission of Sir G-uy Carleton. 

Spain, at the time the Quebec Act was passed, held all the 
country west of the Mississippi.* The old English colonies 
were on the brink of revolution, and, contrary to the preamble 
of the Bill, and contrary to the avowed declaration of its sup- 
porters, it is scarcely reasonable to suppose that the Parlia- 
ment of G-reat Britain would deliberately leave a strip of ter- 
ritory seven hundred miles in length, and for a considerable 
distance not one hundred miles in width, without any civil 
government being provided, and that too upon the border of a 
country whose Government had been long hostile to G-reat 
Britain, and whose population were of the same nationality as 
our own subjugated colonists wilhin this narrow territory. 

By the second article of the Treaty of 1783, the south-west- 
ern part of Quebec was ceded to the United States. The boun- 
dary in the north-west is defined as extending " through Lake 
Superior, northward of Isles Royal and Phillippeaux to Long 
Lake ; thence through the middle of the said Long Lake, 
and the water communication between it and Lake of the 
Woods, to the said Lake of the Woods ; thence through the 
said Lake to the most north-w r e stern point thereof; and from 
thence, on a due western course to the River Mississippi."! 

* By a secret Treaty with Spain in 1762, but made public in 1764, France ceded 
to Spain all the country known as Louisiana. This transfer was promulgated in 
1765, and Spain went into possession in 1769. 

t See also Treaty of Ghent 1814, Convention of 1818, and the Ashburton Treaty 
1842. 

F 



66 WESTERN BOUNDARY OF ONTARIO. Part l 

"When a new commission came to be issued in which the 
boundaries of Quebec were laid down after this large sec- 
tion of territory was taken away, it was necessary to follow 
the new international boundary as far as it extended. If the 
western limit of Quebec under the Act of 1774, was aline due 
north from the junction of the Ohio and Mississippi rivers, 
the western limit of the Province would have begun where 
this meridian cuts the international boundary in Lake Su- 
perior, and the boundary of the Province upon the frontier 
would not have been carried westward beyond this point. 
On the other hand, if the Mississippi was held to be the 
western limit, it would be still necessary to go westward 
along the new southern boundary, until the line of the Mis- 
sissippi was reached. On the 22nd of April, 1786, the King 
issued a commission to Sir Guy Carleton, " as Captain-Gene- 
ral and Governor-in-Chief in and for the Province of Quebec, 
in America, comprehending all the territories, islands and 
countries in North America, bounded on the south by a line 
from the Bay of Chaleurs along the highlands which divide 
the river* that empty themselves into the River St. Law- 
rence, from those which fall into the Atlantic Ocean to the 
north-easternmost head of the Connecticut river ; thence 
down along the middle of the river to the forty-fifth degree 
of north latitude. From thence by a line clue -west in the 
said latitude, until it strikes the River Iroquois at Cataraqui ; 
thence along the middle of the said river into Lake Ontario ; 
tl) rough the middle of the said lake until it strikes a com- 
munication by water between that lake and Lake Erie ; 
through the middle of the said lake, until it strikes the 
water communication between that lake and Lake Huron; 
thence along the middle of the said water communication 
into Lake Huron, thence through the middle of the said 
lake to the water communication between that lake and 
Lake Superior ; thence through Lake Superior, northward 
of the Isles Royal and Phillippeaux to the Long Lake; thence 
through the middle of the said Long Lake and the water 



Part L WESTERN BOUNDARY OF ONTARIO. 67 

communication between it and Lake of the Woods, and 
thence through the said Lake of the Woods to the most 
north-western point thereof; and from thence in a due west 
course to the river Mississippi, and northward to the southern 
boundary of the territory granted to the Merchant Adventur- 
ers of England trading to Hudson's Bay; and also all such terri- 
tories, islands and countries which have since the 10th of April, 
1763, been made part of the government of Newfoundland."* 
Here we see the Mississippi was made the limitary line upon 
the west, and I know of no other reason for so regarding it 
than the one which I have already stated— that it was believed 
to have been made such by the Act of 1774. But were it 
possible to suppose otherwise, still the southern boundary of 
Quebec is extended by the King's commission to Sir Guy 
Carleton westward to the Mississippi river, and it can scarcely 
be doubted that if the King wished to enlarge the boundaries 
of the Province he had the power to do so. The old Province 
was established by proclamation based upon an Order in 
Council, and the limits of the Province as enlarged was to 
continue only during his Majesty's pleasure. It might have 
been argued, that according to a literal construction of these 
words, all the power reserved to the Crown in the matter 
was to retain the boundaries as they were set forth in the 
Act, or revert to those which were first established bv the 
proclamation. It was not so, however, that the advisers of 
the Crown understood the law. The King first changed the 
boundaries by the Treaty of 17^3 ; and on the 19th of April, 
1791, the Province of Quebec was divided into Upper and 
Lower Canada, by an Order in Council. The Act of 1791 
does not divide the Province of Quebec. It assumes that 
power to do this is vested in the Crown. It declares that the 
King has expressed his pleasure to make the division, and it 
is necessary to provide a government for each Province. f 



* Chisholm Papers, MSS., p. 110. 

-j- By the Treaty of Paris, 1763, the Island of Cape Breton was ceded by Prance to the 
King and Crown of Great Britain. By Proclamation issued by the King in Octoh 



68 WESTERN BOUNDARY OF ONTARIO. Part ^ 

The Province of Quebec was divided into Upper and Lower 
Canada by an Order in Council passed on the 19th August, 1791,. 

1763, the Islands of Cape Breton and St. Johns were annexed to the Government of 
Nova Scotia, and the Proclamation authorized the Governor to call General Assemblies 
in the said governments, as soon as the circumstances of the colony would admit. In 
1784 a separate government, by Royal Commission, was given to Cape Breton ; and in 
1820 the Crown, by a commission to the Governor of Nova Scotia, annexed Cape Bre- 
ton to Nova Scotia. The inhabitants of Cape Breton petitioned the Crown, complain- 
ing of the illegality of the re-annexation by the act of the Crown alone, without their 
consent, or without an Act of the Imperial Parliament, as contrary to the Proclama- 
tion of 1763, and the Commission of 1784. Held by the Judicial Committee of the 
Privy Council that the union was legal, and that the petitioners were not entitled to a 
separate constitution under the Commission of 1784. In re Gape Breton Island, 1846, 5 
Moore's P. G. Reports. " The King had no jurisdiction over boundary within the realm; 
without, he had in all his dominions as the absolute owner of the territory from whom 
all title and power must flow, (1 Bl. Com. 241 ; Co Litt 1 ; Hobb. 322 ; 7 J>. C D. 76 ; 
Cowp, 204-11 ; 7 Co. 17 b.) as the supreme legislator— save a limited power in Parlia- 
ment. He could make or unmake boundaries in any part of his dominions, except in 
proprietary provinces. He exercised this power by treaty, as in 1763, by limiting the 
colonies to the Mississippi, whose charters extended to the South Sea ; by proclamation! 
which was a supreme law, as in Florida and Georgia, (12 Wheat 524 ; 1 Laws of U. S. 
443-51 ;) by Order in Council, as between Massachusetts and New Hampshire cited 
in the argument (1). But in all cases it was by his political power, which was com- 
petent to dismember royal, though it was not exercised on the chartered or proprietary 
provinces. (Mclntyre v. Johnston, 8. Wheat 580.) In Council the King had no origi- 
nal power (1 Ves. Sr. 447). He decided on appeals from the colonial courts, settled 
boundaries in virtue of his prerogative where there was no agreement : but if there is 
disputed agreement, the King cannot decree on it ; and therefore, the Council remit in 
to be determined in another place, on the footing of a contract (1 Ves. Sr. 347); Baldwin, 
J. in Rhode Island v. Massachusetts— 12 Peters, S. C. Reports. 

Before the Treaty of Paris, 1763, the territory claimed by England in North America 
extended southwardly to the 29th degree of north latitude as is evidenced by her 
charters to the Lords proprietors in 1677, (1665) and by the same instrument she in- 
terfered with the province of Louisiana by extending her southern line to the ocean. 
The country of Florida south of the 29th degree N. L., and west to the Mississippi was 

a conquest on the seventh of October, 1763, the King established the northern 

boundary of the Floridas at 31 degrees N. L., taking off a strip two degrees in width 
from the original colonies. This became a subject of dispute between the United States 
and Spain after the treaty of 1783. The original title of South Carolina, under the 
grant to the lord's proprietors, was unquestionable ; and she contended that she had 
never been legally divested of the soil or sovreignty. Georgia founded her claim 
upon the commission to her governor, Wright, which comprised within its jurisdiction 
the territory in question, and the United States claimed it as a conquest from the 
British Province of West Florida. While Spain insisted that it was either a part of 
Louisiana or Florida, and as such was ceded to Her by the Treaty of 17S;>. South 
Carolina, by theTreatyof Beaufort, relinquished her claim to Georgia, and the United 



PaktI. . WESTERN BOUNDARY OF ONTARIO. 69 

and in the commission to Lord Dorchester, formerly Sir G-uy Car- 
leton, bearing date the 12th of September following, the boun- 
daries of Upper Canada (Ontario) are given as follow : — " It 
is to be separated from Lower Canada by a line to commence 
at a stone boundary on the north bank of Lake St. Francis, 
at the cove west of the point on Baudet ; in the limit be- 
tween the Township of Lancaster and the Seigneury of New 
Longeuil, running alongside the limit in the direction of 
north, thirty-four degrees west to the westernmost angle of 
the said Seigneury of New Longeuil ; thence along the 
north-western boundary of the Seigneury of Yaudreuil, 
running north, twenty-five degrees east, until it strikes the 
Ottawa river ; and ascending the said river into the Lake 
Temiscaming ; and from the head of the said lake, by a 
line drawn due north until it strikes the boundary line of 
Hudson's Bay. The Province of Upper Canada ^Ontario) 
to comprehend all such lands, territories, and islands, lying 
to the westward of the said line of division as part of our said 
Province of Quebec." These acts of state prove conclusively 
that the eastern boundary of Ontario extends due north from 
Lake Temiscaming, to the boundary of Hudson's Bay, and that 
the western boundary, under this commission, is a line drawn 
northward from the head waters of the Mississippi ; or, under 
the Order in Council, one still farther to the west. It 
is quite certain, that no part of the country north of 
the Missouri river was ever known as a part of the 

States settled her claim by taking a cession from. Georgia The Board of Trade 

of Great Britain in March, 1764, passed a resolution advising the King to extend the 
limits of West Florida up to the line drawn from the movth of the Yazoo river east to 
Chatahouchee ; it does not appear that the King ever made an order adopting this re- 
commendation. No proclamation was issued in pursuance of it, but it appears that 
the commissions to the Governors of Florida designated that line as the northern limit 
of that Province. Notwithstanding which Governor Wright continued to preside over 
Georgia under his commission of 1763, which extended to the twenty ninth degree N. 
L. on the south. It is true that the power of the Crown was at that time absolute over 
the limits of the royal provinces, but there is no reason to believe that it ever had been 
exercised^by any means less solemn and notorious than a proclamation. 

Harcourt v. Galliard. 2 Wheat. 526-7. 

(1) See 1 Chalmer's Annals, 480, 490; also, the History of the Boundary Disputes 
between New Hampshire and New York in 1764. 3 Belknap's Hist. N. H. 296. 



70 WESTERN BOUNDARY OF ONTARIO. part u 

Province of Louisiana before the surrender of Canada to 
Great Britain* In the grant of Louisiana to Crozat in 1712, 
the Missouri and the Ohio were the northern boundaries of the 
Province, which, in the charter, was declared to be a depen- 
dency of Canada.f The boundary upon the east of the Mis- 
sissppi, under the Western Company, to whom the country 
was transferred upon its surrender by Crozat in 1717, was ex- 
tended northward to the River Illinois, and was held by the 
French to include the valley of the Ohio. The Western Com- 
pany surrendered the country to the Crown of France in 1732.$ 
In 1735. Bienville, a Canadian, assumed the government of the 
country on behalf of the Crown of France, but it was subject 
to Canada, and it was from Canada that the line of fortifica- 
tions which were to protect the valley of the Ohio against 
English encroachments were constructed, and it was as a part 
of Canada that this valley was surrendered to G-eneral Am- 
herst in the capitulation at Montreal. || After the Treaty of 
Paris the Mississippi became the eastern boundary of Louisi- 
ana, but the country to the north of that river was counted as 
a part of New France or Canada. It was from the Grove rnor 
of Canada that the commanders upon the Red river of the 
north, and the Saskatchewan obtained their licenses to trade 
with the Indians in those distant regions. M. Dufiot de Mo- 

* Upon Franquelin's map of 1684 the boundary runs along the highlands, south of 
Lakes Erie and Michigan, and northward upon the watershed between Lake Michigan 
and the Mississippi river; — that is the whole valley of the Mississippi. This was im- 
mediately after La Salle's discoveries. Coronelli's map published in 1688 includes the 
whole in " Canada on La Nouvelle France," of which " La Louisiane" forms a part, 
and this latter accords with the political arrangement at the time. 

| See Appendix J. 

t See Monette's History of the Valley of the Mississippi, vol. 1 : French's Hist. Col. 
The Oregon Question, by T. Falconer. 

|| The King will not desert his claim to the entire and total session of all Canada and 
its dependencies. Pitt to M. Bussj/,17 August, 1761. 

As the Court of England has added to the first article of their answer to the entire 
and total cession of Canada as agreed between the two Courts the word dependencies, 
it is necessary to give a specific explanation of this word, that the cession might not 
in the end occasion difficulties between the two Courts with regard to the meaning of 
the word dependencies. Choiseul, 9 Sep., 1761. The reason is obvious, for otherwise it 
would include all Louisiana. 



Part I. WESTERN BOUNDARY OF ONTARIO. 71 

fras says: "If the boundaries between New France and tjpie 
Hudson's Bay Company were not clearly denned even after 
the Treaty of Utrecht in 1713 and that of the cession of Ca- 
nada in 1763, it is undeniable, that, either New France or the 
possessions of the Hudson's Bay Company extended as far as 
the Pacific ocean ; and that if the Spaniards first explored 
the north-western coast of America, the French first discov- 
ered the interior of the continent proceeding from the east 
westwards. All the old maps, in this, in accord with the most 
reliable authors, only place the boundary of the French pos- 
sessions in Canada at the southern sea. L'Escarbot, who 
wrote in 1617, among others, states as follows : — ' Thus our 
New France has for its limits, on the western side the lands 
as far as the sea called the Pacific, on this side the tropic of 
Cancer ; on the south the islands of the Atlantic sea, in the 
direction of Cuba and the island of Hispaniola ; on the east the 
northern sea which bathes New France, and on the north 
thai land called unknown towards the icy sea as far as the 
arctic pole.' Lastly, in a map engraved in 1757, and attached 
to the memorials of the Commissioners of the Kings of France and 
England in America it may be observed that New France extended 
as far as the Pacific ocean, and it shows on the western coast 
of America, at the 46th degree, a large river running in a direc- 
tion which corresponds exactly with that of the Rio Columbia. 
There is moreover nothing surprising in this specific descrip- 
tion since from 1711 to 1754, the Captains G-eneral of New 
France sent out numerous expeditions to the western part of 
Canada, and after thirty years of uninterrupted explorations 
under the enlightened government of the Marquis de Beau- 
harnois, an officer, M. de la Yerendrye, acquired a thorough 
knowledge of the river and the western sea, which were no 
other than the Pacific Ocean and the Columbia."* 

As early as 1641, Jogues and Raymbault preached to the 
Indians at the outlet of Lake Superior.! Shortly after this the 

* Mofras ' Exploration de 1' Oregon et des Calif ornies. 
+ Bancroft, vol. 2, chap. 20. 



72 WESTERN BOUNDARY OF ONTARIO. Part l 

Iroquois war began, and many of the Hurons and Ottawas 
fled to the western shore of that lake. 

In 1654, two young fur traders joined a band of those In- 
dians who were then at Quebec, and were absent for two 
years. They returned in 1656, accompanied by 250 Indians. 
They gave information in regard to the great lakes beyond 
Lake Huron. They described the Sioux of the west and the 
Knisteneaux of the north, and other tribes who dwelt in the 
region about them. The Indians asked to have their commerce 
with the French renewed, and missionaries sent amongst them. 

In 1659 some fur traders went to Grreen Bay, and two of them 
passed the winter upon the shore of Lake Superior. They re- 
turned to Quebec the following summer with an escort of sixty 
canoes and 300 Indians. 

Between 1660 and 1672 the whole country about Lake Su- 
perior was explored by Mesnard, Allouez, Dablon, Marquette, 
and Andre. 

In 1671 the Hurons and Ottawas who dwelt at La Point e 
near the western extremity of Superior, and whose emigration 
thither facilitated the explorations of the French, were sud- 
denly attacked by the Sioux, and returned to their ancient 
country." 

The Illinois tribes, who had at one time dwelt near Lake 
Michigan, but who had been driven by the Iroquois beyond 
the Mississippi, were yearly visitors at La Pointe, informed 
Marquette and others of the existence of the Mississippi and the 
intervening country. f Daniel G-reysolon du Lhut, in 1678, ex- 
plored the country between Lake Superior and the Mississippi. 
He had been two years in those regions when met by Henne- 
pin. He sought to establish relations of friendship between the 
Sioux and the Assiniboines. In the summer of 1679, he visited 
three towns of the Sioux, and planted in their country the 
arms of the French King 4 He, with the four Frenchmen who 

* Parkman's Discovery of the Great V.Cst, p. 31. 
| Dalbon. Relation, L671. 

X Du Lhut to M. Frontenac. He left Quebec on the 1st of September, 1678, for the 
purpose of discovering the Nadessious (Sioux) and Assinipoulaks (Assiniboins). On 



Part I. WESTERN BOUNDARY OF ONTARIO. 73 

were with him, accompanied Hennepin down the Mississippi 
to the Wisconsin, and thence to Green Bay. He built a trading- 
post near Thunder Bay on the north-west shore of Lake Super- 
ior, called Camanistigoyan. The Intendant, Duchesneau, de- 
nounced him as a leader of the coureurs des bois, of whom the 
missionaries complained, and who were trading with the In- 
dians without licenses. In all this he acted in & public capacity, 
and under the authority of the Governor of Canada.* The 
French, about this time, established forts at the river Mpigon 
and other places upon Lake Superior ;f and it would seem 
that a trading post was erected north or north-west of Lake 
Nipigon.J§ In 1716, Messrs. Vaudreuil and Began addressed 
the French Government in favor of extending the explorations 
westward to the Pacific ocean. The Government of France, 
the following year, approved of the plan. M. de Yaudreuil 
was instructed to establish three posts without any expense 

the 2nd July, 1679. he caused his Majesty's arms to be planted in the great village of 
the Nadessioux called Kathio, where no Frenchman had ever been, nor at Sougaski- 
kous and Honetbatons, 120 leagues distant from the former, where he also set up the 
King's arms in 1679. On the 15th of September he gave to the Assenipoulaks and other 
northern nations a rendezvous at the head of Lake Superior, with a view to get them to 
make peace with the Nadessioux. They all were there and he united them together. 
N. Y. Hist. Doc., vol. 9, p. 795. 

* Parkeman's Discoveries of the Great West, pp. 251-9. 

t See M. de Beauharnois to Count de Maurepas, 8th Oct., 1744. See Appendix M. 

X Du Lhut's brother who has recently arrived from the rivers above the Lake of the 
Allenenipigons assures me that he saw more than 1500 persons come to trade with 
him. They were very sorry that he had not sufficient goods to satisfy them. They are 
of the tribes accustomed to resort to the English of Port Nelson or Biver Bourbon, 
where they say they did not go, through Sieur du Lhut's influence. It remains to be seen 
whether they speak the truth. The overland route to them is frightful, on account 
of its length and of the difficulty of finding food. He says there is a multitude of peo- 
ple beyond these, and that no trade is to be expected except by sea, for by the rivers the 
expense is too great. Denonville to Seigneiay. August 1687. 

§ The North- West Company had a fort (Ft. Duncan) at the north end of Lake Nipi- 
gon. described by Harmon in his journal. Employing the Coureurs des bois, formerly in 
the service of the French, they occupied the trading posts which had been established by 
the French. The old commanders had returned to the army, and the trade was for a few 
years suspended. This is evident from the statement made by the Indians to Carver. 
When the war was over the wood runners remained, but the commanders returned no 
more. 



74 WESTERN BOUNDARY OF ONTARIO. 



Part L. 



to the King ; as it was thought that those who founded them 
would find a sufficient remuneration in the Indian trade. In 
July 1717, M. de Yaudreuil caused Sieur de la Noue, lieu- 
tenant, to set out with eight cannons to prosecute this scheme 
of discovery. He instructed Lieutenant de la Noue "to estab- 
lish the first post at the Biver Kanastigoya," to the north of 
Lake Superior, after which he was to go to Takancamiononis 
near the Christianaux lake, to establish a second,* and to 
acquire through the Indians the information necessary for the 
establishment of the third at the Lake of the Assenipoles.f It 
is said that while this expedition will cost the King nothing, 
it is absolutely necessary that the King should bear the ex- 
pense of those who continue to explore the country, after 
these posts have been established, as they will be obliged to 
give up all idea of trade. They estimate that fifty good voy- 
ageurs will be required; twenty -four to occupy the three posts, 
and twenty-six others to prosecute the exploration of the 
country from Lake Assenipoles to the western sea.-f- 

The next expedition of which I have been able to find any 
authentic account, is that of M. Yerendrye. He formed a 
trading partnership with some Montreal merchants. They 
supplied goods, or funds wherewith to purchase such as were 
suited to the Indian trade. They also furnished the equip- 
ment for his journey. He set out for Lake Superior, accom- 
panied by Pere Messager, a missionary priest. He was au- 
thorized to take possession, in the King's name, of all countries 
he should discover ; also to examine them attentively, in order 
to form an idea as to what facilities they might possess for 
establishing a route across those western regions, by which 
Canada and Louisiana might be connected with the South 
sea. To enable him to perform this important service no 
public aid was accorded to him, and, as a consequence, he 
found it necessary to linger about Michilimackinac and Lake 

* Lake St. Joseph's, north of Nipigon, and at the head of Albany river. 

f Lake Winnipeg. 

X See Minute of Council. Appendix K. 



Part 



WESTEKN BOUNDARY OF ONTARIO. 75 



Superior until 1733. In the year 1731 some of those in the 
employment of M. Yerendrye, starting from Kaministigoya r 
a fort constructed by Lieutenant Robert de la Noue, passed on 
to Eainy lake, where they built Fort St. Peter. They then 
proceeded westward to Lake of the Woods, where they erected 
Fort St. Charles the following year. They subsequently fol- 
lowed the course of Winnipeg river, upon the north bank of 
which they constructed Fort Maurepas in 1734, " They took," 
says Grarneau, "possession of the country for a two-fold pur- 
pose — to fulfil the obligation they owed to the King, and to 
establish fortified posts, useful to themselves, for the prosecu- 
tion of their private traffic. They crossed Lake Dauphin and 
Swan Lake ; they recognized the Eiver des Biches, and ascend- 
ed the Saskatchewan or Poscoyac to the forks. They raised 
Fort Dauphin at the head of Lake Manitoba, and Fort de la 
Reine at its foot. They also built Fort Bourbon on the Biches 
river, at the head of Lake Winnipeg;* and lastly they con- 
structed Rouge Fort at the junction of the Assiniboine and 
Red rivers. Subsequently directed by Yerendrye's brother 
and sons, they went westerly and northerly. In 1736 a son 
of Yerendrye, Pere Amnion, and twenty others were massa- 
cred by the Sioux upon an island in Lake of the Woods."f 
Four years later Yerendrye reached the base of Rocky 
Mountains. % 

The fur trade was carried on by retired officers of the French 
army, called commanders, " who engaged in these distant ex- 
peditions, and had posts as far west as the banks of the Sas- 

* Fort Bourbon was built by M. de Saint Pierre, a French Officer, and the first ad- 
venturer into these parts of the country. Henry's Travels, ch. 9, pt. 2nd. Lieut. St. 
Pierre was employed for many years about Lake Superior. See Narrative of Occur- 
rences in 1746, 7, 8. 

+ The French had several settlements in and about Lake of the Woods. Sir A. Mac- 
kenzie, p. lvii. 

+ Journal of M. Verendrye. Garneau refers to two letters of M. Margry in the 
Moniteur, in September and November, 1857, as containing interesting accounts of M. 
Verendrye's discoveries and labours in the west ; but they are not in the papers of 
the dates given. I suppose the dates have been misprinted, and I did not, in conse- 
quence, find them. 



76 WESTERN BOUNDARY OF ONTARIO. Part l 

katchewan river, in 53° north latitude and longitude 102 Q 
west."* 

" It may be proper," says McKenzie, " to observe that the 
French had two settlements upon the Saskatchewan long- 
before and at the conquest of Canada ; the first at the Pas- 
quia, near Carrot river, and the other at Nipawi, where 
they had agricultural instruments and wheel carriages, marks 
of both being found about these establishments, where the 
soil is excellent." f All the posts in the north-west were un- 
der the control of the Governor of Canada, and were recog- 
nized as being within its limits. 

In the year 1746, when a number of French traders had 
been murdered by the Indians, Gallissoniere (the Governor) 
suggests the propriety of abandoning the northern and west- 
ern posts, so as to compel the Indians " to come to Michili- 
mackinac, and even to Montreal, in search of what they 
want." He informs Lieutenant St. Pierre that he is at liberty 
to determine, according to circumstances, as to whether the 
different licenses to the northern posts shall be carried into 
execution or not. They were ; and the only reason for not 
undertaking to coerce the Indians in the manner suggested 
was, that the trade of the north-west would pass into the hands 
of the English at Hudson's Bay.$ 

Between the period of the fall of Quebec, and the year 1766, 
the trade by the lakes and the St. Lawrence was greatly in- 
terrupted. Few, if any, of the old " commanders" remained. 
They were men of education, with strong national feeling, 
and, for the most part, officers of the army ; and they with- 
drew, when New France became a British possession. || 

Carver, who visited the country north of Lake Superior, in 
1767, says that, on the waters which fall into Lake Winnipeg, 

* History of the Fur Trade, pp. v. vi. Sir A. McKenzie, 1789-93. 

| Ibid. p. lxxiii. Nipawi is in 104 Q west longitude, and seems to have been esta- 
blished by Captain de la Come, some time prior to 1746. See Appendix L. 

+ See extracts from N. Y. Hist. Doc, appendix M. 

|| See Sir W. Johnson to Lords of Trade ; also, extracts from Sir A. McKenzie's 
History of the Fur Trade. 



Part I. WESTERN BOUNDARY OF ONTARIO. 7T 

" the neighbouring nations take great numbers of excellent 
furs, some of these they carry to the factories and settlements 
belonging to Hudson's Bay Company, situated above the en- 
trance of the Bourbon river ; but this they do with reluc- 
tance on several accounts ; for some of the Assinipoils and 
Killistinoes, who usually traded with the Company's servants, 
told me that, if they could be sure of a constant supply of 
goods from Michilimackinac, they would not trade anywhere 
else."* 

The Canadians who had lived long with the Indians con- 
tinued to reside among* them after the conquest. They had 
done so from the time of Du Lhut. They enjoyed the confi- 
dence of the tribes among whom they dwelt. There had al- 
ways been many border men in the old colonies, who engaged 
in the Indian trade. In the year 1746 eight of them, led by 
a Canadian, succeeded in passing from the Ohio to north 
shore of Lake Superior.! They were, however, generally ig- 
norant of the north-west ; and they knew, after Canada be- 
came a dependency of England, by recent experience, that the 
former allies of the Indians had taught them to cherish feel- 
ings of hatred to Englishmen. $ When, then, the English be- 
gan to engage in the fur trade of the west, they employed the 
coureurs des bois, as their intermediate agents, in dealing with 
the Indians. The trade, by the way of the lakes, was rapidly 
resuscitated, and extended from the Missouri river to the 
Polar sea, and west to the Eocky Mountains. § One of the 

* See extracts from Carver's Travels, Appendix L. 

+ See extracts from New York Hist., Doc, appendix M. 

X Parkman's war of Pontiac, and Paris documents in the N. Y. Hist., Doc. 

§ " The northern Indians, by annually visiting their southern friends, the Atha- 
pascow Indians have contracted the small pox — which has carried off nine-tenths of 
them, particularly those people who compose the trade at Churchill Factory. The few 
survivors follow the example of their southern neighbours and trade with the Canadians, 
who are settled in the heart of the Athapascow country. I was informed by some nor- 
thern Indians that the few who remain of the Copper Tribe have found their way to 
one of the Canadian houses in the Athapascow Indians' country, where they get supplied 
with everything at less, or about half the price they were formerly obliged to give ; so 



78 WESTERN BOUNDARY OF ONTARIO. PaR t i. 

English traders, Thomas Curry, in the autumn of 17G6, accom- 
panied by several guides and interpreters, went to Fort Bour- 
bon, on the Saskatchewan, and returned after a most fortunate 
adventure, the following spring.^ 

Within a very short period of time, an animated competi- 
tion prevailed among the fur traders, and occasional conflicts 
ensued which pointed to the necessity of union, f 

In 1783, the North- West Company was formed at Montreal, 
with a capital which was divided into sixteen shares, but no 
portion of it was deposited. In the spring of the following 
year, two of the shareholders went to the Grrand Portage, near 
the head of Lake Superior, for the purpose of seeing the prin- 
cipal traders, whom it was proposed to embrace in the com- 
pany. The arrangements which had been made, were agreed 
to, and confirmed by all, except a Mr. Pond, who was not sat- 
isfied with the share allotted him. He and a Mr. Pangman, 
who seems to have been overlooked, came to Montreal to or- 
ganize another company, intending, if successful, to return 
again to the north-west for the purpose of superintending the 
trade. Pond united with the first company. But Pangman, 
being joined by Gregory, McLeod and McKenzie, formed a 
separate organization. These rival companies soon came into 
conflict, and Sir A. McKenzie, says, — "After the murder of one 
of our partners and the laming of another, and -the narrow 
escape of one of the clerks, who received a bullet through 
his powder horn in the execution of his duty, a union of the 
two Companies was effected in July, 1787."J The X. Y. 
Company which had several forts, and for a time carried on an 
extensive trade in the north-west, united with the North-West 

that the few surviving northern Indians, as well as the Hudson's Bay Company have 
now lost every shadow of any future trade from that quarter, unless the Company will 
establish a settlement within the Athapascow country and undersell the Canadians." — 
Hearne's Journal, 1771. 

* History of the Fur Trade— P. vin. Sir \. McKenzie. 

+ McKenzie's History of the Fur Trade. 

X History of the Fur Trade, p. liii. Sir A. McK. 



Part I. 



WESTERN BOUNDARY OF ONTARIO. 79 



Company in 1803.* " The Hudson's Bay Company, who, in 
the year 1774, and not till then, thought proper to move from 
home to the east bank of Sturgeon lake, in latitude 53° 56' 
north, and longitude 102° 15' west, and became more jealous 
of their fellow subjects, and perhaps with more cause, than 
they had been of those of France. From this period to the 
present time, they have been following the Canadians to 
their different establishments, while, on the contrary, there 
is not a solitary instance that the Canadians have followed 
them; and there are many trading posts which they have not 
yet attained. This, however, will no longer be a mystery, 
when the nature and policy of the Hudson's Bay Company 
is compared with that which has been pursued by their 
rivals in the trade."! There seems to have been no misun- 
derstandings or conflicts between the two Companies until 
after the arrival of Lord Selkirk.! The North-West Company 
extended their posts beyond the Rocky Mountains, and up- 
wards of three hundred Canadians were employed in carrying 
on a traffic over the country between California and Russian 
America. § 

At some seasons of the year not less than three thousand 
traders were assembled at Fort William, which had become 
the chief entrepot of the North-West Fur Trade. 

The Hudson's Bay Company did not enter the Valley of 
the Saskatchewan before the year 1780, nor the Valley of the 
Red river before 1805. || They followed the North- West 

* A Journal of fifteen years' residence among the Indians. Daniel Harmon. 

This does not agree with the statement of Sir E. Ellice, before the Committee of 
the House of Commons, 1857. He says these Companies remained separate until both 
united with the H. B. Company. Question 5776. 

It is probable he had partly forgotten the circumstances. 

+ History of the Fur Trade, p. ix. Sir A. McK. 

% Harmon's Journal. 

§" Occurrences in North America," p. 125. This book was written by the Bight 
Hon. Edward Ellice and Wm. McGillivray. See statement of Ellice before Com- 
mittee of House of Commons, enquiring into affairs of H. B. Company, 1857- Ques- 
tion 5992. 

|| McKenzie's History of the Fur Trade. Harmon's Journal. Testimony of Mc 
Donell and Dawson before a Committee of the Legislative Assembly of Canada, 1857. 



80 WESTERN BOUNDARY OF ONTARIO. Part l 

Company as they extended their posts to the north and west, 
and for a time the traders of the two companies remained on 
the most friendly terms. With the accession of Lord Selkirk 
to the head of the H. B. Company's affairs, a policy of violence 
and lawlessness was adopted.* 

The period from 1811 to 1820 was one of conflict between 
the North-West and Hudson's Bay Companies. A grant was 
made of several thousand square miles to Lord Selkirk by the 
Hudson's Bay Company in the Eed river district, six years 
after that company first entered that part of the country, and 
one hundred and forty years after they had obtained their 
charter. 

Lord Selkirk, acting in the interests of the Hudson's Bay 
Company, at once set to work to expel the Canadian traders. 
Many of their posts and forts were taken, and some of them 
destroyed. Their supplies were seized. Forcible possession 
was taken of their letters and correspondence, and an attack 
was made upon a band of their traders, in which the people 
of the Hudson's Bay Company were defeated and upwards of 
twenty lives were sacrificed. Representations were made, by 
leading partners of the North- West Company, both to the 
Imperial and Canadian Governments, of the actual condition 
of affairs, in which the conduct of Lord Selkirk and his agents 
was denounced, and the pretensions to exclusive possession 
denied. f On the 12th of February, 1817, Earl Bathurst ad- 
dressed a despatch to the Governor General, in which he 
sa id : — » You will also require, under similar penalties, the 
restitution of all forts, buildings, or trading stations, with the 
property which they contain, which may have been seized or 
taken possession of by either party, to the party who originally 
established or constructed the same, and who were possessed 
of them previous to the recent disputes between the two 
Companies." 

* The various places where these companies had forts or other posts are named in 
Harmon's Journal. 

t Occurrences in North America, 1817. 



Part i WESTERN BOUNDARY OF ONTARIO. 81 

" You will also require the removal of any blockade, or im- 
pediment, by which, any party may have attempted to pre- 
vent, or interrupt, the free passage of traders, or others of 
his Majesty's subjects, or* the natives of the country, with 
their merchandise, furs, provisions, and other effects through- 
out the lakes, rivers, roads, and every other usual route or 
communication heretofore used for the purposes of the fur 
trade in the interior of North America ; and ti e full and free 
permission for all persons to pursue their usual and accustomed 
trade, without hindrance or molestation." 

Propositions were made by the North- West Company, be- 
fore this time, for the union of the two companies, the Cana- 
dians receiving two-thirds and their rivals one-third of the 
profits, and that each should furnish in that proportion the 
means and capital, or to give the H. B. Company two-thirds of 
the trade over which they claimed their chartered rights 
extended, upon the condition that they refrained from en- 
croaching upon the northern and western slopes of the conti- 
nent. These offers for an arrangement were declined. The 
company, through Lord Selkirk, submitted a counter-propo- 
sition in which they stated " that they would not interfere 
with the Athabaska posts if the Canadians would give up all 
trade in the countries through which any waters passed, flow- 
ing towards the Hudson's Bay ;" that in the event of the North- 
West Company acceding to this stipulation, they would be per- 
mitted to retain some of their own posts along the line to the 
Arthabasca country, if they would agree to leave the ques- 
tion of right to arbitration, which, if it decided in favour of 
the Hudson's Bay Company, then *the North-West Company 
should pay an adequate rent to their rivals as landlords.* 
This counter-proposal the North-West Company declined to 
entertain. The Governor-General appointed a Mr. Coltman, 
in 1816, a commissioner, to enquire into and report upon the 
causes and extent of the disturbances in the North-West. Mr. 
Coltman made his report in which he recommended a union of 

* Occurrences in North America 1817, p.p. 59, 60, 61. 
G 



82 WESTEEN BOUNDARY OF ONTARIO. Part L 

the interests of the various fur-traders in that country. Both 
companies had lost largely. The stock of the Hudson's Bay Com- 
pany fell, during the contest, from 230 to 50 per cent. " In this 
state of things," says the Eight Hon. Ed. Ellice, " I think about 
1819 or 1820, Lord Bathurst, then Secretary of State for the Co- 
lonies, sent for me to consult me whether it was possible to 
do anything towards promoting a union between the com- 
panies I undertook that matter, not only at his request, but 
from obvious considerations of interest, having become under 
considerable engagements for one of the companies ; and after 
a very difficult negotiation I succeeded in uniting the interests 
of the various parties and inducing them to agree to carry on 
the trade after that agreement under the charter of the Hud- 
son's Bay Company. At the same time, I suggested to Lord Ba- 
thurst to propose a Bill to Parliament which should enable the 
Crown to grant a license of exclusive trade {saving the rights of 
the Hudson's Bay Company over their territory) as well over the 
country to the east, as over that beyond the Eocky Mountains, and 
to extend to the Pacific ocean, so that any competition which 
was likely to be injurious to the peace of the country should 
be thereafter prevented. From these different arrangements 
sprung the present Hudson's Bay Company, which is more in 
fact a Canadian company than an English company. The Act 
then passed under which the company have since carried on 
the fur trade throughout the Indian territories beyond their 
boundaries exclusively by virtue of the license."* 

An Act was then passed for regulating the fur trade ; and a 
Eoyal license for the privilege of trading with the Indians to 
the exclusion of other parties was obtained. This license does 
not embrace the territories granted to the Hudson's Bay 
Company ; and tvhile it secured to the new company a monopoly 
of the trade, it made it impossible for them to improve their title 
to the disputed territory by lapse of time. 

From 1811 until 1820 the Hudson's Bay Company claimed 
the North- West, as a part of their grant which had neverthe- 

* Question 5784 — answer to Committee on H. B. Co. The House of Commons. 



Part I. WESTERN BOUNDARY OF ONTARIO. 83 

less been in the possession of others for a period of 119 years. 
During the nine years of hostility between themselves and the 
Canadian company, their pretensions were energetically re- 
sisted ; then came a union of the rival parties and the grant 
of an exclusive license. It can hardly be seriously argued that 
if their claim to the North- West was bad in 1811, "it would be 
opposed to the spirit of our law," to try the validity of that 
claim by principles which might then have been deemed 
applicable, since it must be admitted that this territory, in 
that event, was held by a license from the Crown ; and the 
company, during the continuance of their license, could not, 
any more than other tenants set up an adverse claim which 
would be strengthened by lapse of time.* 

From this brief historical sketch of the North-West country, 
it will be observed that it was explored by Du Lhut in 1671, 
and from that time down to the fall of Quebec in 1759, the 
French carried on an extensive trade with the Indians be- 
yond Lake Superior ;-f- that from 1717 until the country was 
ceded to G-reat Britain, it was under the authority of the G-o- 
vernors of Canada, and was recognized as a part of Canada by 
the French Government ; that the trade from Montreal and 
Quebec which was frequently interrupted between 1759 and 
1765, at the end of the Pontiac war, began again to revive and 
was carried on exclusively by traders from Canada until 
the beginning of this century; % that the French half-breeds 

* See copy of the License — Appendix 0. 

f McKenzie's History of the Fur Trade. Harmon's Journal. Evidence of the Hon. 
Win. Gillivray. N. W. Trials at York, U. C., 1818. 

X G. H. Pelly, Governor of H. B. Company, in a letter to the Lords of the Commit- 
tee of the Privy Council for Trade, 7th February, 1838, says that "Up to this period 
(A. D. 1800) the Hudson's Bay Company had no great cause of complaint for interfe- 
rence with their inland trade, and if they had been left unmolested or been protected 
in the undisturbed possession of it, and of the rights and privileges vested in them by 
their charter, they would in all probability have continued in the enjoyment of the ad- 
vantages they were deriving from their labours and exertions in those remote and little 
frequented wilds." That is up to the period that they became aware of the existence 
of the country and wasted their resources in seeking to expel the Canadian traders. 

The H. B. Company paid their servants fixed salaries while the Canadian Company 
compensated theirs by a share of the dividend, and Mr. Harmon refers to the marked 
difference in the zeal of the two classes for the welfare of their employers. 



84 WESTERN BOUNDARY OF ONTARIO. 



Part T. 



in the North- West, (the descendants of the wood-runners 
and traders who intermarried with the Indians,) from the 
time of the conquest, looked upon themselves as the law- 
ful proprietors of the country, and demanded compensation for 
permission to trade there.* It is difficult to understand 
how any valid claim to that country, can be based upon 
the charter granted to the Hudson's Bay Company. To say 
that the company's charter is valid, is beside the question. 
The charter, in one respect, must be regarded as a commis- 
sion to make discoveries, and to take possession of unknown 
regions, on behalf of the English Crown.f It could not be 
held to convey a country seven hundred miles away from the 
nearest point visited by a company, that had never made any 
explorations in the territory, and that had in no way attempted 
to establish their authority over it. The grant of the territo- 
ries named in the charter of the Hudson's Bay Company, was 
not a grant of lands in the actual possession of the Crown ; it 
was a prospective conveyance of a country to be acquired by 
discovery and settlement, or occupation, and it can be conclu- 
sively shown, that the whole North- West country was in the 
actual possession of the French for nearly a century before it 

* An impression is attempted to be made [by Lord Selkirk and his friends,] that 
these latter people, [the French half-breeds] are a race only known since the establish- 
ment of the North-West Company ; but the fact is, that when the traders first pene- 
trated into that country, after the conquest of Canada, they found it overrun by per- 
sons of this description. Some of whom were then chief leaders of the different tribes 
of Indians in the plains, and inherited the names of their fathers, who had been the 
principal French commandants, and traders of the district. 

A gentleman who was formerly engaged in the Indian Trade, and who was lately 
in London, informed the author, that when he first visited the Red river in the year 
1784, he was stopped near the Forks by some of these half-breeds, or Brulee Chiefs, 
who told him that he could only trade in that country by their permission ; and as the 
y>rice of such permission, they exacted from him goods, to the value of above £400. This 
gentleman found at the Upper Red river, Mr. Grant, the father of the half-breed 
Grant, mentioned in the Narrative, who had paid a similar tribute for permision to 
trade ; so that it appears the right now claimed by the half-breeds, to the possession 
of the country, is at least no novelty. iVotep. 150, Occurrences in North America, 1817. 

f Many of the early charters were commissions to explore and take possession 
of countries to be discovered ; and the rights of trade, &c, granted, were the reward 
They gave the grantees an interest in promoting the interests of the Crown. 



Part I. WESTERN BOUNDARY OF ONTARIO. 85 

was ever visited by any one on behalf of the Hudson's Bay 
Company. The Sovereigns of England granted many charters 
in North America, conveying very extensive territories — some 
of them embracing the continent from the Atlantic ocean to 
the South sea, between certain parallels of latitude. Yet they 
were never regarded as furnishing a good ground for exclud- 
ing the French from, the banks of the Mississippi, or the 
Spaniards from the Western coast, between the same parallels. 
I am not aware that they have ever been referred to in any 
correspondence between those European nations, that claimed 
extensive possessions upon this continent, covered by such 
charters. Differences arose between England and Holland, 
and between England and France, as to the limits of their 
respective possessions iu North America ; but in no instance 
did any one of the governments commit the folly of referring 
to the charters which it had granted to its own subjects, for 
the purpose of establishing its superior claim to the territory 
in dispute. 

It is true that the charter granted by Charles the Second to 
" The Merchant Adventurers of England trading in Hudson's 
Bay," does not profess to grant territory in the possession of 
another State, but upon what principle of right, or of public law y 
can it be maintained, that he could convey all the territory in 
North America, not in the possession of any other Christian 
Prince ? What authority or power did he possess, that could 
make a charter of this kind from him, of any more value than 
like charters made by the Kings of France and Spain to their 
subjects ? Such grants were made by the King of France ; and 
the respective rights of the two governments were defended 
upon grounds of prior discovery, followed by occupation in 
some way, by treaties of cession from the natives, or by some 
other act which, according to the usages of nations, and the 
moral sense of mankind, creates a superior claim to the sover- 
eignty of the country in dispute. Had Charles the Second 
granted to the Hudson's Bay Company all the lands along the 
shore of the bay, to the distance of a hundred miles inland, it 



86 WESTERN BOUNDARY OF ONTARIO. 



Pabt I. 



would not have made his claim to the sovereignty of the 
country lying beyond the grant any the less strong ; and can 
any one say upon what ground that claim can be based ? 
Whoever has taken the trouble to look into the policy of grant- 
ing charters like this, must be aware that they were not usu- 
ally given, because the king had the sovereignty of the country 
conveyed, but in order that it might become his by the subse- 
quent acts of those to whom the grant was made * There are 
in the history of English colonization many instances of pros- 
pective grants of this kind ; and the validity of the grant, as 
against any foreign prince or his subjects, depends upon the 
fact as to who was the first to perform those acts, which are 
held, byjthe law of nations, to constitute a title to the sovereignty 
of the country. The widest possible extent of territory was 
usually granted by the king, not because another sovereign 
could thereby be stopped from conveying, in like manner, a 
title equally valid to his subjects, but for the purpose of extend- 
ing his dominions by stimulating certain of his people to make 
discovery, and take possession of unappropriated tracts of 
country, by his authority, and on his behalf. The French King- 
did exercise his prerogative of making similar grants to his peo- 
ple, and while the English adventurers rested upon the shore 
of Hudson's Bay, and slept upon their prospective rights, the 
French boldly pressed forward and took possession of the 
interior, and held it for eighty years, when it was ceded to 
England by the Treaty of Paris. France had possession of 
the country to the Eocky Mountains at the time of the peace 
of Aix-la-Chapelle, but no complaint was made by the English 
that she had encroached upon British territory. The truth 
is, that the whole country drained by the Red and the Saskatch- 

'* As in the cases of the two Patents by Henry VII. to John Cabot. Biddle's 
Memoir of Sebastian Cabot, p. 75 ; Hakluyt, vol. 3, p p. 30, 31 ; the Patent by Elizabeth 
to Sir Humprey Gilbert, 1578 ; Hakluyt, vol. 3, 174-176 ; Charters to noblemen, &c. , 
of London, and knights, &c, of the west, 1606 ; Hazard's Hist. Col. vol. 1 ; pp. 51-58 ; 
and many others of a prospective character. To assume that the lands granted were 
actually claimed by the Crown at the time is a mistake. It was by the act of the 
adventurers that the Crown expected to acquire a title. 



Part I. WESTERN BOUNDARY OF ONTARIO. 87 

ewan rivers, was to the British Government and people. 
an unknown land, and the maps of that country, published by 
British G-eographers, were simply copied from the maps of 
the French.^ Had the Hudson's Bay Company acquired the 
possession of the North- West country, by establishing forts 
and trading posts there, before the country was in the actual 
possession of the Canadians, they might have claimed it with 
some reason under their charter. They did not do so. There 
had been no act, formal or informal, of any Englishman, which 
gave to the Crown of England any basis upon which it could 
found a claim to the sovereignty of the North-West. The 
company rested upon the rights which a contested claim to 
the exclusive possession of the bay itself, gave ; and while they 
did so, another people, against whom the rights conferred by 
their charter had no force, in fact, or in law, occupied the in- 
terior. No discoveries were made by the company until the 
time of Hearne, nine years after Canada became a Province of 
Great Britain. 

Before concluding this part of my report, I would invite 
your attention to the maps published by British Geographers 
during the period which elapsed between the Quebec Act of 
1774, and the treaty of peace with the United States in 1783, 
in all of which, the Mississippi river is marked as the western 
boundary of the Province, from its junction with the Ohio to 
its source, f Nor can I omit all allusion to the position uni- 
formly taken by the Government of the Province of Canada 
upon the subject of the western boundary, as set forth in 
several public documents and acts of the executive. I have 
appended to this report the memorandum submitted to the 
House of Assembly in 1857, on the rights of Upper Canada to 
the North- West territory, by the then Commissioner of 
Crown Lands ; the memorandum and papers submitted to a 

* See statement of Jeffries' in his geography, p 19. See also a letter from C. Colden, 
Surveyor General, colony of New York, to Governor Clarke. New York. Col. Doc. 
vol. 4, p 177. 

+ See Governor Pownall's Map in Appendix of Maps. 



88 WESTERN BOUNDARY OF ONTARIO. Part u 

Committee of the House of Commons, appointed to enquire- 
into the affairs of the Hudson's Bay Company, in May, 1857 r 
by Chief Justice Draper, the Commissioner of the Canadian 
Grovernment, and to the treaty made with the Indians west of 
Fort William for the extinguishment of their title. I would 
also call your attention to the fact, that the Crown Lands De- 
partment laid oat townships and granted lands west of the 
limits which it is now sought to assign to the Province of 
Ontario; that a part of the District of Algoma, which re- 
turns a representative from the Province of Ontario to the 
House of Commons, lies in the disputed territory ; and that 
the present limits of that district were assigned to it by those 
who now maintain that it includes territory which forms no 
part of this Province.* I have also appended two official 
letters, addressed by Sir G-eorge Cartier and the Hon.William 
McDougal, to Sir F. Rogers, bearing date the 16th of January 
and the 8th of February, 1869, respectively. 

From the facts which I have stated in the foregoing pages,, 
it is clear that New France extended westward to the Rocky 
Mountains, if not to the Pacific ocean ; that, of this territory, 
the Province of Quebec included all eastward of the Missis- 
sippi to its head waters, and from thence to the Hudson's Bay 
territories, it included all eastward of a line drawn from the 
source of the Mississippi sufficiently far to the westward to 
embrace all the French settlements and posts in the North- 
West, that is, to the forks of the Saskatchewan river ; that by 
the Order in Council of 1791, all that part of Canada, to its- 
utmost limits, west of the boundary between Upper and 
Lower Canada, is declared to be included in Upper Canada. 
This would extend the boundary on the west to the Rocky 
Mountains. It would carry the boundary of the Province 
wertward beyond the limits of Quebec under the Act of 1774; 
and where that Order in Council placed the boundary, it, in 
my opinion, still remains. The commission to Lord Dorchester 

* The decision of the Court in de Reinhard's case was not then so much regarded 
by the Premier of Canada as it is now. 



Parti. WESTERN BOUNDARY OF ONTARIO. 89 

extended his authority oyer so much of Upper Canada as was 
included in the Province of Quebec as altered by the treaty of 
1783, and the limits of which are set forth in the commission 
of 1786. I have no doubt but that the Province of Manitoba 
has been formed within the legal limits of Ontario. It is to be 
regretted that no protest was made by the Government of 
Ontario at the time that Manitoba was being established. 

It would have been to the advantage of this Province had 
her just claims to the North -West been asserted while the ne- 
gotiations between the Imperial and Canadian Governments, 
for the transfer of Prince Rupert's land and the Indian ter- 
ritories, were pending. This was not done. I will not say 
that the rights of the Province to the territories west of Mani- 
toba have been greatly prejudiced by the failure of a former 
G-overnment to assert them. The difficulty ot procuring an 
equitable arrangement has certainly been increased. The 
Province of Manitoba exists by the sanction of the Imperial 
Parliament. The British North America Act of 1871 recog- 
nizes and sanctions the establishment of that Province. The 
claims of Ontario to the country which is included within its 
boundaries, having regard to existing facts, can now be met 
only by adequate compensation. 



REPORT ON THE BOUNDARIES 

OF THE 

Province of Ontaeio 



NORTHERN BOUNDARY OF ONTARIO. 

The sovereignty of the territory, upon the shore of Hud- 
son's Bay was a matter in dispute, between the Crowns of 
Great Britain and France, from the year 1670 until the sign- 
ing of the Treaty of Utrecht, when the French claims to the 
possession of the coasts of the bay were definitely yielded to 
Great Britain. The location of the boundary line between 
Ontario and the Hudson's bay country, can be determined 
only by the facts of history and the recognized principles of 
public law. 

Hudson Bay and Straits were discovered by Sebastian Cabot, 
who sailed thither under a commission from Henry VIII. of 
England, in 1517. He then entered the bay, which ninety- 
three years later took its name from Henry Hudson.* 

It is stated in a paper prepared by the Hudson's Bay Com- 
pany, for the purpose of establishing the right of the Crown 
of Great Britain to this bay at the time they obtained their 
charter, " that Sir Martin Frobisher, in Queen Elizabeth's time, 
made three voyages to the said bay, in 1576, 1577, and 1578, 
and gave English names to several places there ; and that Cap- 
tain Davis made also three voyages, and named other places 
in the bay." This statement is inaccurate. In the year 1576, 

* Sir H. Gilbert, in Hackluyt, vol. 3, pp. 49, 50 ; Eden and Willis' History of Tra- 
vayles in the East and West Indies, fol. 223 ; Anderson's History of Commerce, ann. 
1496. " In a map published by Ortelius," says the author of the Memoir of Cabot, 
" Hudson's Bay is laid down with singular precision. Ortelius was in possession of a 
map of the world by Sebastian Cabot."— Memoir of Cabot, p. 29. 



92 NORTHERN BOUNDARY OF ONTARIO. Part 1L 

Frobisher, who had long desired to start on a voyage for the 
discovery of a north-west passage to the east, regarding it, as 
he himself declared, as " the only thing of the world that was 
yet left undone by which a notable minde might be made fa- 
mous and fortunate," was gratified through the favour of the 
Earl of Warwick. He sailed from the Thames in command 
of three small vessels of ten, twenty, and twenty-five tons 
burden, respectively. The smallest of the three sank in a 
storm. The mariners on the second, fearing a similar fate, 
returned. Frobisher sailed in the remaining sloop to the en- 
trance of Hudson's Bay. He landed on an island near the 
strait which bears his name, and took formal possession of it 
for Elizabeth, and returned to England. A stone was brought 
back from this island which, it was said, contained gold. A 
fleet was at once fitted out. Elizabeth, who had done nothing 
more than express her good wishes at the first voyage, sent a 
large ship. This fleet which went in search for the northern El- 
dorado, did not advance westward as far as Frobisher had done 
in his little barque of twenty-five tons burden the year before. 
In his third voyage, a fleet of fifteen sail left upon the adven- 
ture, with one hundred persons as colonists. He reached the 
strait now called Hudson's. Frobisher thought that this 
strait led to the Pacific. As he was not seeking for geogra- 
phical knowledge, but for the rich mines which were sup- 
posed to have been discovered upon his first voyage, he did 
not feel himself at liberty to sail further westward. He and 
his companions voyaged northward through dense fogs, 
amidst mountains of ice, again and again escaping destruc- 
tion, they scarcely knew how ; so that, by the time they had 
reached the point of destination, those who were to colonise 
the islands, between Hudson's Bay and Davis Straits, were 
most willing to return to England. The sailors were ready to 
mutiny. A cargo of the black ore was carried back. The 
avaricious were disappointed, and science gained nothing by 
the adventure. Frobisher, perhaps, would have found his 
way into the bay, had he not felt that his duty as a mercantile 



part II. NORTHERN BOUNDARY OF ONTARIO. 93 

agent forbade him sailing thither. He did not do so, and I 
fail to discover in what way these voyages of Frobisher can 
establish a title to territories which stretched along a shore at 
least a thousand miles away.* The discoveries of Davis were 
still more distant. 

The bay was explored by " Frederic Anschild, who had set 
out from Norway or Yclandia some years before with a de- 
sign to find out a passage to Japan. He entered a strait, 
which twenty or thirty years later, was called Hudson's Straits. 
He wintered in Hudson's Bay, and returned the next spring 
to Denmark.f 

Captain Hudson entered the bay in 1610, in search of a 
north-west passage. He is often credited with being the dis- 
coverer ; and the English claim to the possession of the bay 
has been in part based upon his supposed discovery. Baron 
La Hon tan says that he was in command of a Dutch ship, and 
when he left the bay returned to Holland. In this La Hon- 
tan is in error. Hudson made four voyages in search of a 
highway to the east. The first was in 1607, under the direc- 
tion of a company of London merchants. He coasted the eastern 
shore of Greenland, and visited Spitzbergen. He sailed north 
to within eight degrees of the pole, and was compelled, on ac- 
count of the ice, to return. 

In 1608 he sailed a second time, and attempted to reach 
the East Indies by passing between Spitzbergen and Nova 
Zembla, but failed. The ardour of the London merchants was 
dampened by these failures, and they were not willing to in- 
cur further expense. 

Hudson repaired to Holland, where he was engaged by the 
Dutch East India Company, through the influence of Mouche- 
ron, and in April, 1609, the Orescent, under his command, 
manned by a mixed crew of Dutch and English, put to sea in 
search of a north-west passage. This time he sailed along the 
coast of Nova Scotia to Sandy Hook, passed through the Nar- 

* llackhiyt, vol. 3, pp. 52-129. 
+ La Hontan's Memoirs. 



94 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



rows, discovered and explored the Hudson river, and gave to 
Holland a claim upon the country which subsequently became 
the Province of New Netherlands. He sailed from America 
to Dartmouth. From thence he sent " a brilliant account of 
his discoveries," to the Dutch Company, but they refused to 
search further for a north-western passage to southern Asia. 

In 1610 Hudson made his fourth voyage under the direc- 
tion of a company of English merchants. He entered the 
straits which bear his name. He supposed when he came 
upon the wide gulf that he had indeed gained his object. He 
voyaged along the coast, and found himself within an inland 
sea. He still hoped to discover a western strait, and resolved 
to winter in the bay. For this no adequate preparation had 
been made. When spring opened, the ship's supplies were 
exhausted, and he was compelled to make ready for a return. 
The ship became encompassed with vast fields of ice. The crew, 
who were discontented before, now mutinied. Hudson, his 
only son, and seven others were placed in a boat. Four of 
the seven were sick at the time. Philip Staffe, the ship's car- 
penter, asked leave to share the fate of his captain, and the 
request was granted him. Just when the ship made its way 
from the ice> the boat, with the ten who had been placed in it, 
was sent adrift, and was never after heard of. Such is a brief 
abstract of the voyages of Captain Hudson. The first two 
and the last of which were made under the patronage of Eng_ 
lishmen.* 

It is recorded that Sir Thomas Button, in 1612, entered the 
bay and erected a cross at the mouth of Nelson river, and 
took possession of the country on behalf of the Crown of Eng- 
land ; that Captains Baffin and Bylot entered the bay in 1615 ; 
that Captain Fox, by command of Charles the First, made a 
voyage to Hudson's Bay, in 1631, and finding the cross erected 
by Sir Thomas Button, with the inscription nearly worn out. 
renewed the inscription and again took formal possession ; and 

* N. Y. Hist. Doc, vol. 1, p. 61, 146-188. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 95 

that Captain James explored the southern part to which he 
gave his name, the same year.* 

For more than thirty years after Fox's voyage, we have no 
account of the bay having been visited by any English ship. 

After the restoration of Charles the Second, some noblemen 
and merchants undertook to establish a trade with the Indians,, 
and to erect forts and factories upon the southern and western 
shores of the bay. 

In the year 1667, after the visit of Eadisson and Des G-ros- 
silliers to London, one Zachray G-ilham, in the interest of some 
London merchants, sailed through Hudson's Straits to the 
southern end of the bay, and erected a fort at the mouth of 
Rupert's river. 

In the year 1669, another voyage was undertaken by the 
same adventurers, and one Captain Newland was sent by 
them to the mouth of Nelson river. 

In 1670, those persons who were engaged in fitting out these 
expeditions applied to the King (Charles Second) for a char- 
ter, conferring upon them the exclusive property and trade of 
the Straits and Bay of Hudson and its coasts, which charter 
was granted them in May of that year. This charter professed 
to grant them in free and common socage, " all the lands and 
territories upon the countries, coasts, and confines of the 
seas, bays, lakes, rivers, creeks, and sounds aforesaid, that are 
not already actually possessed by, or granted to, any of our 
subjects, or possessed by the subjects of any other Christian 
Prince or State." These words imply the following proposi- 
tions : — 

That the grant to the Hudson's Bay Company should not 
be held to include : — 

1st. Any portion of the country granted to any other British 
subject. 

* Robson's account of Hudson's Bay, Appendix 1, p. 4. In many of the maps pub- 
lished early in the last century the greater part of what is now called Hudson's Bay was 
then called Button's Bay. Hudson's Bay was, upon the west, but little more than what 
is now called James Bay. The company by extending the name, have increased the 
limits embraced by their charter. 



«)6 NORTHERN BOUNDARY OF ONTARIO. part II. 

2nd. Any portion of the country in the possession of any 
other British subject. 

3rd. A.ny portion possessed by any other Christian Prince 
or State. 

That it should include : — 

1st. Any territory in possession of the Crown, not included 
in the above exceptions. 

2nd. Any territory not in the possession of any European 
nation, to which, the Crown, through the diligence of the 
company, might acquire a title. The words imply, too, that 
the King was not prepared to deny the right of France, to a 
part of the country about the bay ; and that he was not rest- 
ing any right of the Crown upon prior discovery ; but that he 
was disposed to look at the actual condition of things at the 
time the charter was granted. In this particular the position 
of the King was a proper one. Ninety-three years intervened 
between the voyages of Cabot and Hudson ; sixteen years 
between the voyages of Baffin and Fox ; and thirty-six years 
between the voyages of Fox and G-ilham; that is one hundred 
and fifty years intervened between the first and seventh voy- 
age. It will not be difficult to show that title, according to 
the usages of nations, cannot be based upon discovery made 
at some period long past. There must be, besides discovery, 
such acts of occupation or settlement accompanying the act of 
discovery, or following it within a reasonable time, as will 
serve to show that the authority of the sovereign has had a 
potential existence over the territory so claimed. Now there 
were no such relations existing between the explorations of 
Cabot, of Hudson, of Button, or of Fox, and any subsequent 
act of the English Sovereign as would indicate that he, from 
the first, intended making it a part of his dominions. 

The charter to the Hudson Bay Company asserted only a 
conditional right in the King founded upon the then recent 
acts of his subjects, and related back to the voyages of Gilham 
in 1667 and no further. 

It is worthy of note that the Company of New France had 



Pari II. NORTHERN BOUNDARY OF ONTARIO. 97 

received a similar charter in the year 1626 from Louis XIII., 
which included the whole country about Hudson's Bay. 

In 1656, an order of the Sovereign Council of Que bee autho- 
rized Jean Bourdon, its Attorney-G-eneral, to make the discovery 
of Hudson's Bay. He went thither in a barque of thirty tons, 
and took possession in the name of the French King. "While 
there, he made treaties of alliance with the Indians.* 

"In 1661, Father Dablon, a Jesuit, and Sieur deValliere were 
ordered by Sieur d'Argenson, at that time Governor of Canada, 
to proceed to the country about the Hudson's Bay; they went 
thither accordingly, and the Indians who then came back with 
them to Quebec, declared that they had never seen any Euro- 
peans there, f 

" The Indians, anxious to continue their trade with the 
French in Canada, sent a party who returned with Dablon 
to Quebec, to invite the Canadians to establish trading posts 
on the Bay, and to send missionaries among them. Upon 
their way back, they seemed to have repented of what they 
had done, and refused to conduct the missionaries to the 
Bay." t 

"In 1663, the Indians from about Hudson's Bay returned to 
Quebec in further quest of traders, and D'Avangour sent thither 
Sieur de la Couture with five men, who proceeded overland to 
the said Bay, possession whereof he took in the King's name, 
noted the latitude, planted a cross, and deposited at the foot 
of a large tree, his Majesty's arms engraved on copper and laid 
between two sheets of lead, the whole being covered with 
some bark of trees." 

" In the same year (1663,) Sieur Duquet, King's attorney 
to the Prevote of Quebec, and Jean L'Anglois, a Canadian co- 
lonist, went thither again, by order of Sieur D'Argenson, and re- 
newed the act of taking possession by setting up his Majesty's 

* Colliers to M. De Seignelay. N. Y. Hist. Col., vol. 9. p. 268. 
t Ibid ; also M. de Denonville to M. de Seignelay. p. 303, 4, 5. 
I Memoir of the French in Canada from 1504—1706. Paris Doc. 6. N. Y. Hist. 
Col. Vol. 9 p. 784. 
H 



98 NORTHERN BOUNDARY OF ONTARIO. Part n 

arms there a second time. This is proved by the arret of the 
said Sovereign Council of Quebec, and by the orders in writ- 
ing of the said Sieurs D'Argenson and D'Avangour." * 

In 1667, Radisson and des Grrossilliers traversed the country 
from the St. Lawrence to the Upper Lakes and thence to the 
Bay — crossing from Lake Superior, of which the French had 
possession at the time. 

They returned to Quebec, and proposed to the merchants 
there to conduct ships to Hudson's Bay — the proximity of 
which, to the principal fur district, was now ascertained. This 
proposal was rejected. They then went to Paris and explained 
the matter to the King's Ministers, but with no better success. 
They were persuaded by Lord Preston, the English Ambassa- 
dor, to go to London, and to lay their scheme before certain per- 
sons there. They did so, and were favourably received, f 

The London merchants, who entertained the project of the 
two Canadians, entrusted the prosecution of this discovery, not 
to them, but to Zachray Grilham, who had long been engaged 
in the Newfoundland trade. He sailed thither in a small ves- 
sel named the None Such. The discovery I here refer to is 
the one made known to them by Radisson and Des Grrossil- 
liers— that the fur trade north of the great lakes might be car- 
ried on, advantageously, from Hudson's Bay. 

It is highly probable that they were not the first French- 
men to cross from Lake Superior to the Bay, but that they 
were, as has been suggested by Denonville, led thither by the 
old coureurs des bois, with whom they had formerly carried on 
trade. 

In November 1670, Talon wrote to Colbert: — " I learn by 
the return of the Algonquins, who will winter this year at 
Tadousac, that two European vessels have been seen very 
near Hudson's Bay, where they wigwam, as the Indians ex- 
press it. After reflecting on all the nations that might have 

* Memoir of the French in Canada. N. Y. Hist. Col. Vol. 9 p.p. 303, 4, 5. Charle- 
vois's, Vol. 3. Book 10. 
t Ibid. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 99 

penetrated as far north as that, I can light only on the English 
who, under the guidance of a man named Degrossilliers, for- 
merly an inhabitant of Canada, might possibly have attempted 
that navigation not much known and not less dangerous. I 
intend despatching thither overland some man of resolution 
to invite the Kilistinoes, who are in great numbers in the vi- 
cinity to that Bay, to come down to see us, as the Ottawas 
do, in order that we may have the first pick of what the 
latter savages bring us, who acting as pedlars between those 
nations and us make us pay for a round-about of three or four hun- 
dred leagues. The proposal made to me by Capt. Poulette, of 
Dieppe, ought to be menticned here. This man, wise by long 
practice and experience acquired from an early age and became 
a skilful navigator, offers to undertake the discovery if not yet 
accomplished, of the passage between the two seas, the North 
and South, either by Davis Straits, or by Magellan, which he 
thinks more certain. After having doubled the opposite coast 
of America, as far as California, he will take the western winds 
and favoured by these, re-enter Hudson's Bay or Davis Straits. 
I have given him a letter which he is to present to you if he 
have not altered the plan, which would be to penetrate as far 
as China by one or the other of these passages. If you desire 
to hear him, my secretary will have him repair to you."* 

In November, 1671. Talon writes to the King — "Three 
months ago I despatched with Father Albanal, a Jesuit, Sieur 
de Saint Simon, a young Canadian gentleman recently honoured 
by his Majesty with a title. They were to penetrate as far as 
Hudson's Bay ; draw up a memoh; of all they will discover ; 
drive a trade in furs with the Indians, and especially reconnoitre 
whether there be any means of wintering ships in that quarter, 
in order to establish a factory, that might when necessary supply 
provisions to the vessels that will possibly hereafter discover, 
by that channel, the communicaion between the two seas — the 
north and the south. Since their departure, I received letters 

**N. Y. Hist. Col. Vol. 9 p. 97. 



100 NORTHERN BOUNDARY OF ONTARIO. Part il 

from them three times. The last, brought from one hundred 
leagues from here, informs me that the Indians, whom they met 
on the way, have assured them that two English vessels and 
three barques wintered in the neighbourhood of that bay, and 
made a vast collection of beavers there. If my letters in reply 
are safely delivered to the said father, this establishment will 
be thoroughly examined, and his Majesty will have full infor- 
mation about it. As those countries have been long ago ori- 
ginally discovered by the French, I have commissioned the 
said Sieur de St. Simon to take renewed possession in his 
Majesty's name, with orders to set up the escutcheon of France 
with which he is entrusted, and to draw up his proces-verbal 
in the form I have furnished him. 

" It is proposed to me to despatch a barque of sixty tons hence 
to Hudson's Bay, whereby it is expected something will be dis- 
covered of the communication of the two seas. If the adven- 
turers who from their design subject the King to no expense, 
I shall give them hopes of some mark of honour, if they suc- 
ceed ; besides indemnifying from the fur trade which they 
will carry on with the Indians."* 

In 1673, a Jesuit missionary was sent overland from Canada 
to discover the country and the situation of the Trading Posts 
of the Hudson's Bay Company. Under the pretence of friend- 
ship, he carried with him letters to Des Grossilliers- from his 
friends in Canada, which led the Grovernor of the Company 
to suspect that he was corresponding with the French to the 
prejudice of the English interests in that section. Des G-ros- 
silliers and Eadisson were dismissed, after having been in the 
service of the English nearly six years, and returned to Ca- 
nada.* 

In 1676, Radisson and Des G-rosilliers having obtained par- 
don for their defection, a company was formed at Quebec, 
who sent them to Hudson's Bay, where they formed a sett le- 
nient north of the said bay on the River Bourbon, which is the 



* N. Y. Hist. Col., vol. 9, pp. 72-73. 

f Robson's Hudson's Bay, Appendix I, pp. 6-8. 



Part n NORTHERN BOUNDARY OF ONTARIO. 101 

one the English seized last year (1684), in consequence of a 
new treachery on the part of Radisson, who returned to their 
service and conducted them thither.* 

In 1679, Sieur Joliet prepared a narrative and maps of his 
voyage to Hudson's Bay, which the farmers of the revenue of 
Canada demanded of him. This relation is dated the 27th of 
October, 1679, and signed Joliet. f 

In October 1681, Duchesneau, the Intendant of New France, 
in a letter to Seignelay, says : — " The English are still at Hud- 
son's Bay, on the north, and do great damage to our fur trade. 
The farmers of the revenue suffer in consequence by the di- 
minution of trade at Tadoussac, and throughout the entire 
country, because the English draw off the Ottawa nations for 
the one and the other design. 

" They have two forts in the said bay, the one towards Ta- 
doussac and the other at Cape Henriette Marie, on the side of 
the Assinnibouetz.J 

" The Ambassador of the King of England, at Paris, com- 
plained that the man named Radisson and other Frenchmen 
having gone with two barques, called le St Pierre and la Ste. 
Anne, into the river and port of Nelson in 1682, seized a fort and 
some property of which the English have been in possession 
for several years. 

"Eadisson and Des G-rossiliers maintain^ that these allega- 
tions are not true, but that having found a spot on the Nelson 
river adapted to their trade, more than 150 leagues distant 
from the place where the English were settled in Hudson's 
Bay, they took possession of it in the King's name, in the month 
of August, 1682, and had commenced building a fort and some 
houses there. 

" That on the fourteenth of September following, having 
heard cannon, they went out to examine, and on the 26th 
found some beginning of houses on an island, and a vessel 
aground near the coast. 

* Calliers to Seigaelay, N. Y. Hist. Col., vol. 9Jp. 268. 
+ N. Y. Hist. Col., vol. 9, p. 795. 
t K Y. Hist. Col., vol.9, p. 166. 



102 NORTHERN BOUNDARY OF ONTARIO. PART II# 

" That these houses had been begun since they had entered 
the river, and had set about working at their fort and building, 
and, therefore, that they were the first occupants. 

" That since then each haying wished to maintain his esta- 
blishment, the French were become the masters. 

" That the ice and bad weather having caused the destruction 
of the English ship, some men belonging to it had died ; but 
that they had, on their part, treated them with great modera- 
tion and kindness, and rendered every assistance to the Eng- 
lish, who appeared satisfied."" 

The person in command of the English was John Bridger, 
the Governor of the Hudson's Bay Company. He arrived, say 
the English accounts, a few days before the Canadians. The 
French established themselves on the south branch, then 
called Ste. Therese, now Hayes river. They ordered Bridger 
away from the country. He declined to obey. In February 
of the following year, the English were seized and sent to the 
southern end of the bay, with the exception of Grilham and 
Bridger, who were carried prisoners to Quebec. The son of 
Des Grossilliers and five others were left in possession of Fort 
Bourbon. f Upon reaching Quebec, Bridger and Grilham were 
released by La Barre, and their vessels restored. 

M. de la Barre, the Governor of New France, on the 12th of 
November, 1682, writes : " As to what relates to Hudson's 
Bay, the company in Old England advanced some small houses 
along a river which leads from Lake Superior (Winnipeg). 
As possession was taken of the country several years ago, he 
will put an end to this disorder, and report next year the suc- 
cess of his design." 

On the 30th of April, 1683, M. de la Ba.rre writes: " Two 
detachments of Frenchmen have proceeded to the north for 
the purpose of preventing the English of Hudson's Bay enter- 
ing on French territory, and obstructing the trade the French 



* Paris Documents, 6, N. Y. Hist. Col., vol. 9, 798. 
f Robson's Hudson's Bay. 



Part II. NORTHERN" BOUNDARY OF ONTARIO. 103 

carried on with the Assillibois, Themiscamings, Puisescamins, 
and Christinoes." 

On the 5th of August, 1683, the King writes to M de la 
Barre : " I recommend you to prevent, as much as possible, 
the English establishing themselves in Hudson's Bay — posses- 
sion whereof has been taken in my name several years ago ; 
and as Colonel Dunguent (Dongan,) who is appointed by the 
King of England, G-overnor of New York, has had precise 
orders from his Majesty, to keep up a good correspondence 
with you, carefully to avoid every thing that will possibly in- 
terrupt it, I doubt not but the difficulties you have experi- 
enced from the English will cease henceforth." 

On the 4th and 9th of November, 1683, M. delaBarre writes 
ihe King, that — " The people who had been at Hudson's Bay 
have returned, after having encountered extreme dangers. 
They erected a small fort in which they left a garrison of a few 
men, about four leagues up a river, 200 leagues north of any 
Eiglish settlements. It is expected that communication can 
be had with it overland, as will be seen by the maps he sends. 
He has received his Majesty's instructions respecting Hudson's 
Bay, and has engaged those who have organized that expedi- 
tion, to form a company, and send and purchase a ship in 
France." * 

la 1683, an Ordinance of the King was promulgated to the 
effect, ' ; That all merchants and settlers of New France, who 
will purchase beaver, moose and peltries, in Hudson's Bay, 
Perce Island and other parts of New France, Acadia excepted, 
shaL be bound to bring said beaver and moose to Quebec, that 
they may be paid for them, and one-fourth retained for the 
farmers of the revenue."! 

Iu April, 1784, the King writes to the G-overnor of Canada, 
that — " The King of England has authorized his Ambassador to 
spexk to me respecting what occurred in the River Nelson, be- 
tween the English, Radisson and Des Grossilliers ; whereupon 

* Paris Documents, 6. N. Y. Hist. Col. vol. 9. p p. 798-9. 
- N. Y. Hist. Col. vol. 9, p. 800. 



104 NORTHERN BOUNDARY OF ONTARIO. Part n . 

I am happy to inform you, that as I am unwilling to afford the 
King of England any cause of complaint, and as I think it 
important, nevertheless, to prevent the English establishing 
themselves on that river, it would be well for you to have a 
proposal made to the Commandant at Hudson's Bay, that 
neither the French nor the English should have power to make 
any new establishments, to which I am persuaded he will 
give his consent the more readily, as he is not in a position to 
prevent those which my subjects would wish to form in said 
Nelson's river." * 

On the 10th of April, 1684, the Minister of Marine addressed 
M. de la Barre, in reference to the restoration of the vessel to 
G-ilham, which had been captured in Hudson's Bay by Hadisson 
and Des G-rossilliers. He sa> s — " It is impossible to imagine 
what you pretented, when of your own authority, without 
calling on the Intendant, and submitting the matter to tht 
Sovereign Council, you ordered a vessel to be restored to oris 
G-uillam (Grilham), which had been captured by Radisson and 
Grossilliers, and in truth you ought to prevent these sort of pro- 
ceedings, which are entirely unwarranted, coming under h:s 
Majesty's eyes. You have herein done what the English will l>e 
able to make a handle of, since in virtue of your ordinance you 
caused a vessel to be surrendered which ought strictly to be 
considered a pirate, as it had no commission ; and the English 

* The King to M.. de la Barre, 10 April, 1684. Paris, Dec. 6, N. Y. Hist. Col. 
p. 799. 

Note. — The arrangement here suggested was made shortly after. The Governor of .Vew 
France says of it, — " The convention concluded with England, that the River Boirbon 
Port Nelson, shall remain in joint occupation of the two Crowns, is not advantage- 
ous to the French, for the voyages of the English are too dangerous, on accouit of 
their attracting the coureurs des bois as much as possible, besides purchasing the 
beaver at a higher rate and furnishing the goods cheaper than the French. In 
his opinion, it would be more beneficial for the company and colony that the 
French merchants restore the posts at the head of the bay which they took, and 
that the French should leave them Port Nelson or River Bourbon. If this arrangement 
were feasible, the Indians could thus be intercepted by land, for it would be useleffl to 
attempt to become masters of the upper part of the rivers Bourbon and Ste. Therese, 
inasmuch as it is impossible to prevent the Indians trading with the English." - N. Y. 
Hist. Col. vol. 9. 



Part II. 



NORTHERN BOUNDARY OF ONTARIO. 105 



will not fail to say that you so fully recognized the regularity 
of this ship's papers, that you surrendered it to the proprie- 
tors, and they will thence pretend to conclude that they have 
taken legitimate possession of the River Nelson before Messrs. 
Radisson and Des G-rossilliers had, which will be very pre- 
judicial to the colony."* 

" Radisson having gone from Canada to France, in the begin- 
ning of the year 1684, went to London and once more gave 
in his adhesion to the English Hudson's Ray Company, and 
returned to Port Nelson with five ships which they gave him, 
destroyed the French factories that he had himself erected with 
Des G-rossilliers, in 1682, plundered their stores, carried off 
sixty thousand weight of beaver, which he took to London, 
whither also he conveyed all the French who happened to be 
at Nelson, among whom was Des G-rossilliers' son, his nephew, 
and did the Company 400,000 livres damage."f 

"In 1684, the French Company fitted out two barques to 
proceed to Hudson's Ray under the command of Sieur de La- 
martiniere. They sailed on the 19th of June, tarried at St. 
Paul's Ray until the 12th of July, and arrived at Port Nelson 
in the morning of the 22nd of September of the same year ; 
having entered the River St. Therese, they encountered two, 
leagues up, a boat coming towards them having five English- 
men on board, w 7 ho enquired of Lamartiniere what he was 
about in that country, which was the property of the King of 
England. He answered that the river belonged to the King 
of France ; that he was come to trade there, and that he 
wished to speak to the English commandant. After an inter- 
view of six hours they agreed to prosecute their trade without 
troubling each other, and that if any difference occurred be- 
tween them it would be decided by their masters, and that 
meanwhile Lamartiniere could pass their fort. Some French- 
men perceiving that all preparations were being made 

* N. Y. Hist. Col., vol. 9, p. 800. 

t Ibid. Also N. Y. His+. Col., vol. 9, p. 918. Paris, Doc. 7. 

See also Guerin's Maritime History of France, vol. 3. 



106 NORTHERN BOUNDARY OF ONTARIO. Part I( . 

within the fort to insult the French, and that a battery 
of twenty-four guns was erecting to sink them whilst 
passing, Lamartiniere reproached the governor of the 
fort, of whom he demanded six men as hostages, offering 
him as many of his. The English having refused to ac- 
cede to this, Lamartiniere detached during the darkest 
part of the night following thirty men to surprise the Eng- 
lish, who w^ere alarmed by their sentinels. The French were, 
in consequence, obliged to retire in haste, and resolved to pass 
from the north to the south branch of that river, and enter 
another, called La Gargoussee (Cartridge river), which w r as 
opposite their ship, where they wintered, half a league from 
the river. 

" In June, 1685, they ascended four leagues above the Eng- 
lish, where they made a small settlement." 

On the 15th of July they set out to return to Quebec, 
having obtained, in six weeks, 20,000 livres' worth of beaver. 
"" After having passed Hudson's Bay, they met in the Strait a 
vessel of 40 or 50 tons burden, called 'The Little Pink,' which 
arrived without opposition. She was laden with black to- 
bacco, merchandise for the trade, and 3,000 weight of powder, 
some woollens, and 400 fusils, all valued with the vessel, at 
20,000 livres. This vessel was followed by ' The G-reat Pink,' 
which they did not think proper to attack. Two days after- 
wards they met another vessel, of ten or twelve guns, com- 
manded by Osier, on board of which was the man named 
Briguere (Governor Bridger), who was going to relieve the 
Governor at the head of the bay. He is the same that Radis- 
son brought to Quebec three years ago in the ship that M. de 
la Barre restored to him. This Governor gave them chase, 
and obliged them at the end of two days to throw themselves 
into a cove, at the bottom of which was a little river, where 
they ran aground. As the English vessel could not do the 
same, he left at the end of four days. Before leaving, he 
asked a parley of the commander of the barks, and told him 
that Eadisson had gone with Chouars, his nephew, fifteen 



PaetII. NORTHERN BOUNDARY OF ONTARIO. 107 

days ago, to winter in the River Ste. Therese, where they win- 
tered a year. The Governor having left, they hoisted sail, 
and arrived at Quebec on the first of October, 1685."* 

In a memoir on the Present State of Canada, by M. de Den- 
on ville addressed to M. de Seignelay, on the 12th of Novem 
ber, 1685, he says : " We also see the English establishing 
themselves at the North Bay, where they will be more inju- 
rious to us than in the direction of Acadia ; for if their estab- 
lishments continue as they have begun at the three places on 
that bay which they actually occupy, and on the River Bour- 
bon, or Port Nelson, we must expect to see all the best of the 
beaver trade, both as to quality and quantity, in the hands of 
the English ; if not expelled thence, they will get all the fat 
beaver from an infinite number of nations in the north, which 
are being discovered every day ; they will abstract the greatest 
portion of the peltries, that reach us at Montreal through the 
Ottawas and Assinnibois and other neighboring tribes, for these 
will derive a double advantage from going in search of the 
English at Port Nelson. They will not have so far to go, and 
will find goods at a much lower rate than with us. That is 
evident from the fact that our Frenchmen have seen quite re- 
cently at Port Nelson some Indians who were known several 
years ago to have traded at Montreal. The ports at the head 
of the bay, adjoining the rivers Abitibis and Nemisee, can be 
reached through the woods and seized ; our Frenchmen are 
acquainted with the road. But in regard to the ports occupied 
by the English in the River Bourbon or Port Nelson, it is im- 
possible to hold any posts below them, and convey merchan- 
dise thither, except by sea. Some pretend that it is feasible to 
go there overland ; but the river to reach that quarter remains 
to be discovered, and when discovered could only admit the 
conveyance of a few men, and not of any merchandise. The 
best informed on the subject agree herein. . . . . In re- 
gard to Hudson's Bay, should the King not think proper for 
enforcing the reasons his Majesty has for opposing the usurpa- 

*N. Y. Hist. Col., vol. 9, p. 800. 



108 NORTHERN BOUNDARY OF ONTARIO. Part il 

tions of the English, on his lands, by the just titles, proving his 
Majesty's possession long before the English had any know- 
ledge of the said country — nothing is to be done but to find 
means to support the company of the said bay, formed in 
Canada, by the privilege his Majesty has been pleased this 
year to grant to his subjects of New France, and to furnish 
them for some years a few vessels of one hundred and twenty 
tons only, well armed and equipped. I hope with this aid, 
our Canadians will support this affair, which will otherwise 
perish of itself ; whilst the English merchants more powerful 
than our Canadians, will, with good ships, continue their 
trade, whereby they will enrich themselves at the expense of 
the colony and the King's revenue."* 

In March, 1686, the Directors of the French Company ob- 
tained from M. de Denonville a body of Canadian and regu- 
lar troops, under the command of M. de Troye. He set out 
overland, accompanied by Messrs. D'Iberville, St. Helene, and 
Mariconrt. They reached Hudson's Bay in June, and cap- 
tured three of the company's forts. f 

In 1687, D'Iberville returned to Quebec with a ship which 
he and nine others had taken from the Hudson's Bay Com- 
pany, loaded with peltry, that he had found in their fac- 
tories. 

In 1688 he went back to Hudson's Bay. The British had 
sent thither three vessels to expel the French. The ships 
were all taken by D'Iberville, and their crews, who were 
dying of scurvy, were to a man killed. § 

In 1689 the British attacked Fort Ste. Anne. They were 
repulsed, and one ship was taken by D'Iberville. The prison - 

* N. Y. Hist. Col., vol. 9, p. 286. 

+ The French coureurs dcs hois, with one hundred men, took from the English, 
three forts which they were occupying in Hudson's Bay. — N. Y. Hist. Col., vol. 9, 
p. 801. 

Garneau gives the date of this expedition as 1685, and the Hudson's Bay Company 
as 1680. The latter is the true date. (See Instructions to Frontenac, where the date 
is given.) The forts taken were Forts Rupert, Ste. Anne, and a fort on the Monsenis, 
The furs taken at Ste. Anne were valued at 50,000 crowns. 

§ Referred to by King William in his declaration of war against France in 1689. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 109 

ers that had been taken by the French at the time of the 
attack upon the forts and since, were put on board one of the 
vesseJs, with leave to return to England. D'Iberville sailed 
for Quebec, in a ship carrying twenty-four guns, and loaded 
with peltry. * 

In 1691, Fort Ste. Anne was re-taken by the British.f 

In 1694, Fort Bourbon was attacked by the French with 
two frigates, under the command of D'Iberville, and was 
taken. It was at this time that D'Iberville defeated three 
British ships off trie mouth of Nelson river, capturing one 
and sinking a second. This victory established for a time the 
supremacy of France in Hudson's Bay. 

From that time until after the signing of the Treaty of 
Utrecht, a period of twenty years, the possessions of Hud- 
son's Bay Company in the bay were confined to the single 
fort at the mouth of the Albany river, which, - by the condi- 
tions of the Treaty of Ryswick, they were to have surren- 
dered to the French. Such is a brief summary of the contest 
between France and England, during the last half of the 
seventeenth century, for the sovereignty of the Hudson's Bay. 

The Treaty of Ryswick, which was concluded in 1697, pro- 
vided that : — 

" 7th. The Most Christian King shall restore to the said 
King of G-reat Britain all countries, islands, forts, and colo- 
nies, wherever situated, which the English did possess before 
the declaration of this present war. And in like manner the 
King of G-reat Britain shall restore to the Most Christian King 

* In the Instructions to Frontenac, dated the 7th of June, 1689, it is said that 
" The intelligence of this reciprocal invasion caused a meeting at London of Commis- 
sioners on the part of his Majesty and of the King of England, at which, not being- 
able to concur as to the facts, they agreed to postpone the negotiations to the first of 
January of the present year. It could not be continued, in consequence of the revo- 
lution in England. As the English in the present troublesome conjuncture in that 
kingdom will not seemingly have adopted great precaution in those parts, his Majesty 
desires him to afford that Company the protection it will need, as well for the expul- 
sion of the English from the parts they occupy there, as for the continuation of the 
trade.— N. Y. Hist. Col., vol. 9, p. 428. 

t G-arneau's History of Canada. 



110 NORTHERN BOUNDARY OF ONTARIO. Part n , 

all countries, islands, forts, and colonies, wheresoever situated, 
which the French did possess before the said declaration of 
war ; and this restitution shall be made on. both sides, within 
the space of six months, or sooner if it can be done. And to 
that end, immediately after the ratification of this Treaty, each 
of the said Kings shall deliver or cause to be delivered to the 
other, or to commissioners authorized in his name for that 
purpose, all acts of concession, instruments, and necessary 
orders, duly made and in proper form, so that they may have 
their effect. 

" 8th. Commissioners shall be appointed on both sides to 
examine and determine the rights and pretensions which 
either of the said kings hath to places in Hudson's Bay ; but 
the possession of those places which were taken by the French du- 
ring the peace that preceded this present ivar, shall be left to the 
French by virtue of the foregoing articled 

By article seven, the principle of reciprocal restitution, so 
far as it related to conquests made during the war, was agreed 
to. The statu quo ante helium was to be established. Lest 
any doiibt should arise as to the forts taken by the French be- 
fore the war began, article eight declares that places " taken 
by the French in Hudson's Bay during the peace that prece- 
ded this present war," shall be left to the French by virtue 
of the seventh article. This is not simply the application of 
the principle of uti possidetis at the close of the war, which 
would have given France all of the places taken by D'lber- 
ville and others which she then held ; it is the application of 
the principle to the condition of things immediately preceding 
the war. It was saying to France, " What you took from us 
before the war began, shall be yours, and shall be restored to 
you within the space of six months by virtue of the words : — 
' The King of Great Britain shall restore to the Most Chris- 
tian King all countries, islands, forts, and colonies, wherever 
situated, which the English did possess before the declaration 
of war.' " 

Commissioners were appointed under the Treaty ; but I 



Part IT. NORTHERN BOUNDARY OF ONTARIO. Ill 

need not say that they were not at liberty to question the 
rights of France to the possession of those places which had 
been taken from the English before the war began. Of these 
France was made the Sovereign, by the Treaty. The duty of 
the commissioners, it would seem, was to decide after due ex- 
amination, the rights of France and England, respectively, to 
places other than those which the Treaty made uncondition- 
ally the property of France. It was not impossible for the 
entire country about the bay, by the decision of the Commis- 
sioners, to become the property of France ; it was impossible 
that it could so become a possession of England. 

Had it been intended to make them the possessions of 
France, pending the decision of commissioners only, it would 
have been so stated, or the latter half of the eighth article 
would have been embraced in the seventh ; but following as 
it does a provision for the appointment of commissioners to 
determine the rights and pretensions of the two kings to 
places in Hudson's Bay, it must be regarded as a limitation 
upon the scope of the Commission rather than a provision for 
the temporary possession of the places referred to, the only 
effect of which would have been to throw upon the English 
Grovernment the onus of proving a superior title to the 
country. 

It is obvious that as a claimant to Hudson's Bay and the ad- 
jacent country, France stood, after the Treaty of Eyswick, in 
a more advantageous position than England. The Hudson's 
Bay Company held Fort Albany. It had been captured by 
the French in a time of peace, and was re-taken by the Eng- 
lish during the war ; and was therefore by the Treaty itself 
awarded to France. 

In July, 1700, the Hudson's Bay Company addressed a 
communication to the Lords of Trade in reference to their 
boundaries. They proposed the Albany river, or the 53rd paral- 
lel of north latitude, as the boundary on the West coast of the 
bay, and Rupert's river as the boundary on the East coast. 
Beyond these limits neither Government was to permit its 



h 



112 NORTHERN BOUNDARY OF ONTARIO. part n. 

subjects to trade in the territory of the other. They informed 
the Lords of Trade that "by such limitations the French will 
have all the country to the south-eastward betwixt Albany 
Fort and Canada to themselves, which is not only the best 
and most fertile part, but is also a much larger tract of land 
than can be supposed to be to the northward, and the Com- 
pany deprived of that which was always their undoubted 
right." The French, while maintaining that they were by the 
prior occupation of the surrounding country, and by the 
Treaty of St. G-ermain-en-Laye rightful owners of the whole 
country, seemed ready to accept the line of the fifty-fifth paral- 
lel, between Albany and York Forts, as the boundary between 
the possessions of the two countries in the region of Hudson's 
Bay.* This limit the Company declined to accept, " as they 
would thereby be the instruments of their own destruction." 
In January, 1701, Mr. Popple, by order of the Lords of 
Trade, inquired of the G-overnor of the Hudson's Bay Com- 
pany, "whether in case the French cannot be prevailed with to 
consent to the settlement of the boundary proposed, the Com- 
pany will not think fit to consent that the limits on the east 
side of the bay be extended to the latitude of 52 J degrees, 

* "All the world knows," says La Hontan, "that Canada reaches from the 39th 
to the 65th degree of North, that is, from the South of Lake Erie to the North side of 
Hudson's Bay ; and from the 284th to the 336th degree of longitude, viz., from the 

river Mississippi to Cape Race Were I to reckon in all the countries that 

lie to the Nortb-West of Canada, I should find it larger than Europe ; but I confine 
myself to what is discovered, known and owned— I mean to the countries in which the 
French trade with the natives for beavers, and in which they have forts, magazines, 
missionaries, and small settlements." — Memoirs of Travels in N. America (1683-93). 

As to the situation of the country possessed by the French in North America, and 
commonly all comprehended under the prevailing name of Canada, the seat and resi- 
dence of their Grovernor-G-eneral being upon the place properly so-called- -its situation 
is from about 54 degrees of North latitude to the Eastward of Port Nelson, in the 
country of the Escimoes, extending itself all the way South- West to the mouth of 
the Mississippi river, which falls into the Bay of Appalachio, in the Great Bay of 
Mexico, about the latitude of 28 degrees and 30 minutes, comprehending as it goes, 
their part of Newfoundland, the Island of St. Peter, Acadia or Nova Scotia, which 
borders upon the British Province of New Hampshire whose boundary to the East- 
ward is the little River St. Croy (as the French allege). — Captain Vetch (1708), Pow- 
nallMSS., vols. 1 and 4. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 113 

with whatever further they may think it advisable to propose 
in reference to their own affairs, for the more easy settlement 
of all disputes between the Company and the French in Hud- 
son's Bay."* 

The Company on the 12th of February following made the 
further offer as to the limits between themselves and the 
French : 

"1. That the French be limited not to trade by wood- 
runners or otherwise, nor build any house, factory, or fort to 
the northward of Albany river, vulgarly called Checheawan, 
on the West main or coast. 

" 2. That the French be limited not to trade by wood- 
runners or otherwise, nor build any house, factory, or fort to 
the Northward of Hudson's River, on the East main or coast." 

By Propositions 3 and 4, the English were to be restrained 
in like manner from trading south of these limits. 

By Propositions 5 and 6, the islands of the bay were to 
have been divided in a manner corresponding to the limitary 
lines upon each coast. 

•' 7. That neither the French nor the English shall at any 
time hereafter extend their bounds contrary to the aforesaid 
limitations, or instigate the natives to make war on or join 
with either in any acts of hostility to the disturbance or de- 
triment of either nation." 

The Company were willing to agree to these terms upon 
condition, " that they were secured against any claim that ha% 
been 'made, or that may be made on them, under the Eighth Arti- 
cle of the Treaty of Ryswick." 

They were ready to give up Fort Albany, and accept the 
forts north of the boundary line which they had proposed, 
but only upon condition that the limits were definitely settled. 
They said that if the limits they had proposed " are not ac- 
cepted, they will not feel themselves bound by this or any 
former concession of like nature, but must insist upon their 
right to the whole bay." 

* Pownall's MSS. , see Appendix, O. 

I 



114 NORTHERN BOUNDARY OF ONTARIO. Part „ 

I need say nothing concerning this threat. If the Company 
ever had any such right, the Eighth Article of the Treaty of 
Eyswick put it out of the power of the English Government 
to make so extravagant a demand. "When the Company 
asked to be secured against any claim under this article of the 
Treaty, they in effect admitted that a claim might be made. 
It is not difficult to understand what that claim was. I have 
already stated that the Eighth Article of the Treaty made the 
forts and settlements which the French had taken from the 
English before the war, French possessions, which by the 
Seventh Article were to remain to France, and to be restored 
to her where, at the close of the war, they were in the hands 
of the English. By the provisions of the Treaty, Fort Albany 
became a possession of France. The Company proposed a 
line of action which could only have been defended had the 
principle of uti possidetis been the one upon which the Treaty 
had been based. They were not willing to surrender Fort 
Albany without an equivalent, which, by the Treaty, they 
had no right to demand. The feature of the Treaty which 
impressed itself most strongly upon the minds of the Com- 
pany, seems to have been this — that no boundary line could 
be drawn which would exclude the French from the territory 
that would remain to the Company. The Company sought, 
not a fulfilment, but an amendment of the Treaty. Their 
propositions and memorials to the English Government show 
that they were most anxious to have a boundary of mutual 
exclusion, which under the treaty was impossible. They 
wanted in exchange for Fort Albany the places held by the 
French north of the line of division which they expressed 
themselves ready to accept. 

The motive of the Company is obvious. The French were 
in possession of the Severn and Nelson rivers. The com- 
mand of these rivers would have given them the greater part 
of the fur trade north of the limitary line proposed. When 
this fact is remembered, we can fully appreciate their efforts 
to escape from the stipulations of the Treaty, and to proceed 



Part II. 



NORTHERN BOUNDARY OF ONTARIO. 115 



with the Commission as if there had been no agreement on 
the part of England to leave France in possession of all she 
held before the war. 

On the 9th of January, 1702, the Lords of Trade asked the 
Hudson's Bay Company " to lay before them whatever they 
may think fit to offer in relation to the trade and security of 
the place at this time."^ 

On the 19th of the same month, the Company state " that 
they have been left in such a deplorable state by their great 
losses by the French, both in times of peace as well as during 
the late war, together with the hardships they lie under by 
the late Treaty of Ryswick, they may be said to be the only 
mourners by the peace." Albany Fort — their only possession 
— is surrounded by the French on every side, " by their set- 
tlements on the lakes and rivers from Canada to the north- 
wards towards Hudson's Ba}^ as also from Port Nelson (Old 
York Fort) to the southward." They say that " the French 
have made another settlement, at a place called New Severn, 
'twixt Port Nelson and Albany Fort, where they have hin- 
dered the Indians coming to trade at the Company's Factory." 
They ask for " three men of war, one bomb-vessel, and two- 
hundred and fifty soldiers besides the crews, in order that the 
vast tract of land may not be lost to the kingdom." 

On the 19th of May, 1709, the Lords of Trade " ask the 
Company for an account of the encroachments made by the 
French upon the territories and places within the limits of 
the said Company's Charter," This the Company gave, in a 
memorial in which they complain of the sacrifice of their 
rights by the Treaty of Ryswick. They refer to the Report 
of the Commissioners in 1687 in reference to the damages 
they had sust lined from the French, and repeat the King's 
resolution thereupon ; and in a long communication to the 

* This was just before the commencement of the War of the Succession. Each of 
the communications asked from the Company, were sought in view of negociations 
for peace, at the Hague, 1709, at Gertruydenberg, 1710, and at Utrecht, 1711-12. — 
Memoirs de Torcy, vol. 2 ; Coke's Marlborough, vol, 3 ; Bolingbroke's Letters on 
History, 



116 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



Queen, in December, 1709, they say that " when your Majesty in 
your high wisdom shall think fit to give peace to those enemies 
whom your victorious arms have so reduced and humbled, 
and when your Majesty shall judge it for your people's good 
to enter into a Treaty of Peace with the French Kins', your 
petitioners pray that the said Prince be obliged by such 
Treaty to renounce all right and pretensions to the Bay and 
Straits of Hudson, to quit and surrender all posts and settle- 
ments erected by the French or which are now in their pos- 
session, as likewise not to sail any ship or vessel within the 
limits of the Company's Charter, and to make restitution of 
the £108,514 19s. 8d. of which they robbed and despoiled 
your petitioners in times of perfect amity between the two 
kingdoms." 

On the 8th of February, 1712, they addressed a memorial to 
the Lords of Trade, in which they proposed that " No wood- 
runners, either French or Indians or any other person what- 
soever, be permitted to travel or seek for trade beyond the 
limits hereinafter mentioned. That the said limits begin from 
the island called G-rimmington's Island or Cape Perdrix in 
the latitude of 58 J degrees north, which they desire may be 
the boundary between the English and the French on the 
coast of Labrador, towards Rupert's Land on the east main, 
and Nova Britannia on the French side, and that- no French 
ship, barque, boat, or vessel whatsoever shall pass to the 
northward at Cape Perdrix or G-rimmington's Island towards 
or into the Straits or Bay of Hudson on any pretence whatso- 
ever. 

" That a line supposed to pass to the south-westward of the 
said Island of G-rimmington or Cape Perdrix to the great 
Lake Miskosinke at Mistoveny,^ dividing the same into tivo 
partsj as in the map now delivered, and that the French nor 
any others employed by them shall come to the north or 

* Now called Lake Mistassinnie, or Mistassin. 

f Upon all the English maps since this period the boundary is extended to the high- 
lands south of this lake. 



PAR T n. NORTHERN BOUNDARY OF ONTARIO. 117 

northward of the said lake, or supposed line by land or water, 
on or through any rivers, lakes, or countries, to trade, or erect 
any forts or settlements whatsoever, and the English on the 
contrary, not to pass the said supposed line either to the 
southward or eastward. 

" That the French be likewise obliged to quit, surrender, 
and deliver up to the English upon demand York Fort (by 
them called Bourbon) undemolished, together with all forts, 
factories, settlements, and buildings whatsoever taken from 
the English, or since erected or built by the French, with all 
the artillery and ammunition in the condition they are now 
in, together with all other places they are possessed of within 
the limits aforesaid or within the Bay and Straits of Hudson." 

The Company add that their Charter constituted them the 
lord proprietors of all those lands, territories, seas, straits, 
bays, rivers, lakes, and soundings within the entrance of the 
Straits. 

On the 19th of the same month, the Lords of Trade write 
to the Earl of Dartmouth to say " that in obedience to her 
Majesty's commands, they have considered the petition of the 
Hudson's Bay Company, and that they are of opinion that 
they have a good right and just title to the whole Bay and 
Straits of Hudson." 

They state further that they have received from^ the Com- 
pany a memorial, a copy of which they enclose to his Lord- 
ship, and upon which they observe " that it will be for the 
advantage of the said Company that their boundaries be set- 
tled," and they suggest that this, with other matters to which 
they refer, be "recommended to her Majesty's Plenipoten- 
tiaries at Utrecht." 

All these representations of the Hudson's Bay Company 
were made upon the assumption that the War of the Succes- 
sion, which began in 1702, would put an end to the Treaty of 
Byswick, and that the stipulations therein made by England 
and France were no longer binding upon either. This is not 
the rule. " Transitory conventions are perpetual in their na- 



118 NORTHERN BOUNDARY OF ONTARIO. Part n. 

ture, so that being once carried into effect, they subsist inde- 
pendent of any change in the sovereignty and form of go- 
vernment of the contracting parties, and although their ope- 
ration may, in some cases, be suspended during war, they re- 
vive on return of peace without any express stipulation — such 
are treaties of cession, boundary, or exchange of territory, or 
those which create a permanent servitude in favour of one 
nation within the territory of another."* 

" It is of great importance," says Vattel, " to draw a proper 
distinction between a new war and the breach of an existing 
treaty of peace, because the rights acquired by such a treaty 
still subsist, notwithstanding the new war, whereas they are 
annulled by the rupture of the treaty on which they were 
founded. It is true, indeed, that the party who had granted 
those rights, does not fail to obstruct the exercise of them du- 
ring the course of the war, as far as lies in his power, and 
even may, by the right of arms, wholly deprive his enemy of 
them, as well as he may wrest from him his other possessions. 
But in that case he withholds those rights as things taken 
from the enemy, who, on a new treaty of peace, may urge the 
restitution of them." 

The subject matter of the seventh article of the Treaty of 
By s wick is of such a nature that it could not be affected by a 
declaration of war made five years later. The War of the 
Succession was adverse to France, and England was enabled 
to make demands in reference to Hudson's Bay, at its conclu- 
sion, which the triumphs of her arms may have justifiecj, and 
it is upon the treaty which followed, that her sovereignty to 
the shores of the bay must rest It is equally certain that be- 
fore 1713 it was the recognized possession of France. Being 
unconquered, it was, during the war, as much French terri- 
tory as Normandy. What effect the ratification of the Treaty 
of Eyswick had upon the Charter of the Company, I shall 
by and by consider. 

* Wheaton's International Law, part 3, sec. 268 ; see also Vattel, B. 2, chap. 12, 
sec. 192; Kent's Com., vol. 1,420, Society for Propagating the Gospel, v. New 
Haven, 8 Wheat R., 4W. 



Part II NORTHERN BOUNDARY OF ONTARIO. 119 

The provisions of the Treaty of Utrecht, concluded in 1713, 
relating to the claims of France and England in Hudson's Bay, 
are as follows :* 

"X. — The said Most Christian King shall restore to the 
kingdom and Queen of Great Britain, to be possessed in full 
right, the Bay and Straits of Hudson, together with all lands, 
seas, sea-coast, rivers, and places situated in the said bay and 
straits, and which belong thereunto, no tracts of land or sea 
being excepted, which are at present possessed by the subjects 
of France. All which, as well as any buildings there made, 
in the condition they now are, and likewise all fortresses there 
erected either before or since the French seized the same, 
shall within six months from the ratification of the present 
Treaty, or sooner, if possible, be well and truly delivered to 
the British subjects having commission from the Queen of 
Great Britain to demand and receive the same entire and un- 
demolished, together with all the cannon and cannon-ball, and 
with the other provisions of war usually belonging to cannon. 
It is, however, provided that it may be entirely free for the 
Company of Quebec, and all other the subjects of the Most 
Christian King whatsoever, to go by land or by sea, whither- 
soever they please out of the lands of the said bay, together 
with all their goods, merchandises, arms, and effects of what 
nature or condition soever, except such things as are above 
reserved in this Article. But it is agreed on both sides to de- 
termine within a year by commissaries to be forthwith named 
by each party, the limits which are to be fixed between the 
said Bay of Hudson and the places appertaining to the 
French, which limits both the British and French subjects 
shall be wholly forbidden to pass over, or thereby go to each 
other by sea or by land. The same commissaries shall also 
have orders to describe and settle the boundaries between the 
other British and French colonies in those parts 

" XI. — The above-mentioned Most Christian King shall 
take care that satisfaction be given, according to the rule of 

* Chalmers Collection W Treaties, vol. 1, pp. 378-9-80. 



120 NORTHERN BOUNDARY OF ONTARIO. PARr „. 

justice and equity, to the English Company trading to the Bay 
of Hudson, for all damages and spoil done to their colonies, 
ships, persons, and goods, by the hostile incursions and depre- 
dations committed by the French in time of peace, an estimate 
being made thereof by commissaries to be named at the requi- 
sition of each party. . . . ." 

On the 4th of August, 1714, the Hudson's Bay Company 
renewed their application to the Lords of Trade for a settle- 
ment of the boundary between their territory and Canada. 
They again described from Cape Perdrix to the great Lake 
Miskosinke at Mistoveny (Mistasin), the boundary asked for 
in February, 1712 ; but they added to their proposition of 
that date, the words, " and from the said Lake to run south- 
westward into 49 degrees north latitude, as by the red line may 
more particularly appear, and that latitude be the limit. . 

It is quite clear from the correspondence which passed be- 
tween the two Governments at the time that the Treaty was 
being negociated, that no such pretension was put forward by 
the English, and that it was upon the east of the bay alone 
that the Hudson's Bay Company made any suggestions in 
reference to the boundary. 

In August, 1719, in a memorial to the Lords of Trade, the 
Hudson's Bay Company admit that the bay and straits have 
been surrendered to them according to the terms of the Treaty ; 
but they complain that since the conclusion of the Peace — viz., 
in 1715 — the French had made a settlement at the head of Albany 
river,* upon which they have their principal factory, intercept- 
ing the Indian trade, and will ultimately ruin their factories if 
not prevented — and they renew the desire expressed in their 
petition of 1714, that except upon the Labrador coast, the French 
might be prevented going north of the forty-ninth parallel. 

The English Government undertook to refer the " several 
matters pursuant to the 10th, 11th, and 15th Articles of the 
Treaty of Peace with France" to the commissaries who had 

* This may have been the Fort built by Lieutenant Noiie in 1717, by order of Vau- 
dreuil.— See Minute of Conseil de Marine. Appendix K. * 



Part II. NORTHERN BOUNDARY OF ONTARIO. 121 

been appointed under the Commercial Treaty of Utrecht for 
the purpose of giving effect to the provisions of that Treaty ; 
but they were informed that the French commissaries could 
not deal with the subjects referred to in the Treaty of Peace.* 

In 1719, commissioners were appointed for the purpose. 
The demands of the English commissioners were, that the 
limits should be those which the Hudson's Bay Company had 
prayed for since the peace ; that the fort erected by Lieut. 
Noiie at the head of Albany river should be given up, as 
coming within the stipulations of the Treaty ; and that no 
new posts should be established on any of the rivers which 
were discharged into Hudson's Bay. When pretensions were 
thus put forward by the English to so large a territory, the 
French commissioners avoided any further conference. Nor 
is this at all surprising. I think these demands can be con- 
clusively shown to have been inconsistent with the under- 
standing arrived at between the two Governments while the 
Tenth Article of the Treaty of Utrecht was under consideration. 

In a memorial addressed by the Marquis de Torcy to Mr. 
Prior, one of the English Plenipotentiaries to the French 
Court, dated the 7th of January, 1713, New Style, he says : 
" The Plenipotentiaries of Great Britain insist that it shall be 
expressed that France shall restore, not only what has been taken 
from the English, but also all that England has ever possessed in 
that quarter. This new clause differs from the plan, and would 
be a source of perpetual difficulties ; but to avoid them, the King 
has sent to his Plenipotentiaries the same map of North America 
as had been furnished by the Plenipotentiaries of Great Britain. 
His Majesty has caused to be drawn upon this map, a line which 
describes the boundaries in such a manner as he has reason to be- 
lieve they may easily agree [as to~\ this point on both sides." f 

On the following day, Mr. Prior addressed a letter to Lord 
Bolingbroke, in which he says : " As to the limits of Hud- 
son's Bay, and what the Ministry here seem to apprehend, at 

* See Pownall's MSS., vol. 5, p.p. 1-37. 

t Correspondence of Lord Bolingbroke, vol. 3. Appendix P. 



122 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



least in virtue of the general expression — tout ce que V Angle- 
terre a jamais possedS de ce cote la (which they assert to be 
wholly new, and which I think is really so, since our pleni- 
potentiaries make no mention of it) — may give us occasion to 
encroach at any time upon their dominions in Canada, I have 
answered, that since, according to the carte which came from the 
Plenipotentiaries, marked with the extent of what was thought 
our dominion, and returned by the French ivith what they judged 
the extent of their 's, there was no very great difference, and that 
the parties who determine that difference, must be guided by the 
same carte. / thought the Article would admit of no dispute, in 
case it be either determined immediately by the Plenipoten- 
tiaries, or referred to commissioners. I take leave to add to 
your Lordship that these limitations are not otherwise advan- 
tageous or prejudicial to Great Britain than as we are better 
or worse with the native Indians, and that the whole is rather 
a matter of industry than dominion."^ 

It is manifest from this letter of Mr. Prior's, that the extreme 
pretensions of both Governments were marked upon the map 
referred to, and that when a commission came to be ap- 
pointed, they could not seek for a boundary under the Treaty 
elsewhere than within the country lying between these 
lines, These letters have no meaning if it was intended to 
restore the whole country drained into the bay, to England. 
This would be the most extreme demand she could make, 
and these letters show that the actual cession fell far short of 
such a claim. Had there been no maps referred to, and letters 
written, the use of the word restore in the Treaty, must of it- 
self have precluded the English from claiming more than she 
ever actually possessed. The correspondence shows that 
she was to have less; that some of her former possessions 
were not to be restored to her, and the words of the Treaty 
were to be interpreted by the lines upon the map. 

I have no doubt whatever that the boundary of the Hud- 
son's Bay territories marked upon De Lisle's map, which was 

* Hardwicke's State Papers, vol. 2, p. 500. Appendix P. 



PartII. NORTHERN BOUNDARY OF ONTARIO. i23 

first published about the period of these negociations, cor- 
rectly represents the line drawn by the French, upon the map 
referred to by Mr. Prior and the Marquis de Torcy, and it 
cannot for a moment be supposed that upon that map the 
English drew a line coming down to the forty-ninth parallel. 
It is not at all improbable that the British commissioners 
were, at the time they put forward the extreme claims of the 
Hudson's Bay Company, unaware of the limitations the re- 
spective Governments had put upon their claims to dominion 
over the basin of the bay, by lines drawn upon the map, 
which was intended to assist in a proper construction of the 
Tenth Article of the Treaty of Utrecht ; otherwise the con- 
duct of the British commissioners is inconsistent with good 
faith on the part of the Government they represented. Six 
years had elapsed. Bolingbroke had been driven into banish- 
ment. The men who had come into power upon the fall of 
Marlborough were displaced, and it is not at all improbable 
that they were ignorant of the limitation that the letters of 
De Torcy and Prior, and the map they refer to, put upon the 
demands, that otherwise might, with a little show of reason, 
be made under a literal construction of the Treaty. 

The Hudson's Bay Company were called upon in July, 1750, 
to lay before the Lords of Trade and Plantations a description 
of the limits of the territories granted them by the Charter of 
1670. Their knowledge of the geography of the regions they 
claimed, seemed to have improved since 1714. They enter 
into a more minute description of the country. They say 
that the Bay and Straits of Hudson " are now so well known 
that they stand in no need of any particular description than 
by the chart or map herewith delivered, and the limits or 
boundaries of the lands and countries lying round the same, 
comprised as your memorialists conceive in the said grant, 
are as follows : that is to say, all the lands lying on the east 
side or coast of the said bay, and extending from the bay 
eastward to the Atlantic Ocean and Davis' Strait, and the line 
hereafter mentioned, as the east and south-eastern boundaries 



124 NORTHERN BOUNDARY OF ONTARIO. part II. 

of the said Company's territories ; and towards the north, all 
the lands that lie at the north end, or on the north side or coast 
of the said bay, and extending from the bay northwards to 
the utmost limits of the lands there towards the North Pole ; 
but where or how these lands terminate is hitherto unknown. 
And towards the west, all the lands that lie on the west side 
or coast of the said bay, and extending from the said bay 
westward to the utmost limits of the said lands ; but where or 
how these lands terminate to the westward is also unknown, 
though probably it will be found they terminate on the Great 
South Sea. And towards the south, all the lands that lie on 
the south end or south side of the coast of the said bay, the 
extent of which lands to the south to be limited and divided 
from the places appertaining to the French in those parts by 
a line from the island called G-rimmington Island or Cape 
Perdrix, in the latitude of fifty-nine and a half degrees north, 
which they desire may be the boundary between the English 
and the French on the coast of Labrador," &c. The remain- 
der of the description corresponds with the line set out in 
their proposal of the 4th of August, 1714. 

This memorial shows that they did not regard their Char- 
ter as simply covering the territory drained by the rivers 
falling into the bay — as they claimed the territory to the 
North Pole and to the Pacific Ocean. They seem to have ad- 
mitted the claims of the French to the southern part of the 
basin of Hudson's Bay ; for they say with regard to the 
southern boundary, that " to avoid as much as possible any 
just grounds for differing with the French in agreeing on those 
boundaries whiph lie nearest their settlements, it is laid down 
so as to leave the French in possession of as much or more 
land than they can make any just pretension to ; and at 
the same time leaves your memorialists but a very small 
district of land from the south end of the said bay necessary 
for a frontier." This line, as laid down on the maps of Mit- 
chell and Bell, gave to France the country as far west as the 
longitude of the head waters of the Mississippi; and this 



Part II. NORTHERN BOUNDARY OF ONTARIO. 125 

was the most extreme pretension put forward by the Com- 
pany before the conquest of Canada, and the Treaty which 
confirmed it in 1763. 

I have not deemed it necessary to detail the voyages and 
discoveries upon which the French founded their claims to 
the sovereignty of Hudson's Bay. A memoir of their rights 
will be found written by M de Denonvilie, and addressed to 
M. de Seignelay, from Quebec, on the 8th of November, 1686, 
at pages 303, 304, and 305, volume 9, of the New York His- 
torical Collection. The French attempt at continuous occupa. 
tion of the shores of the bay, dates from 1656, and the Eng- 
lish occupation began eleven years later. The French hold- 
ing, as they did, the interior country, carried on the fur trade 
with the northern Indians at Temiscaming, Alemipigon, and 
other posts, did not make any effort to establish themselves 
upon the shores of the bay. They no doubt felt that they could 
better protect the revenue derived from the licenses granted 
to the traders, by making the St. Lawrence the exclusive 
highway to Europe, than by permitting a portion of the trade 
to escape thither from Hudson's Bay. 

There is no evidence that Hudson, or any of those who 
succeeded him, was commissioned to take possession of the 
country about Hudson's Bay, on behalf of the Crown of 
England. Nor is there any evidence that the English had 
any intention of seeking to acquire the territory before 1667. 
If they had any intention before that time to base a claim to 
the sovereignty of the country upon the voyages of Hudson, 
Fox, or Button, there would have been some mention made 
of it during the negociations of the Treaty of St. Grermain- 
en-Laye, in 1632, when Canada was restored to France, and 
the successes of Kirke were thrown away. But there is no 
allusion to any British possessions in the north, and that 
Treaty proves that hi 1632 the English laid claim to no terri- 
tory north of the St. Lawrence.^ 

* Blome's " Present State of His Majesty's Isles and Territoides in North America,' 
published in July, 1686, makes no mention of Hudson's Bay. It was for years only 
known as British territory to the Company, and to the Ministers to whom they com- 
plained of French aggressions. 



126 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



It is not, however, necessary to determine the merits of the 
claims of the respective parties in order to arrive at a just con- 
clusion as to the location of the northern boundary of Ontario. 
The Treaty of Utrecht gave to England the shores of the bay, 
and it is my purpose to state where I think the Treaty of 
Utrecht, and the subsequent acts of the Parliament and King 
of England placed it. During the negociations of the Treaty 
of Utrecht, long discussions took place between the Plenipo- 
tentiaries of England and France as to the phraseology of 
the Treaty.^ The French, in surrendering the bay and the 
adjacent territory, wanted to use the word cede, and the Eng- 
lish insisted on the use of the word restore. The French 
were unwilling to admit that when they captured the Eng- 
lish forts upon the shores of the bay, in time of profound 
peace, they had been capturing forts which were rightfully 
erected by British subjects upon British territory. The 
English seemed to have insisted upon the use of the word 
restore, to revive, if possible, the rights of the Hudson's Bay 
Company to the country which had for twenty years been in 
the possession of the French ; and the letter of Lord Dart- 
mouth to the Hudson's Bay Company shows very clearly that 
the transfer was to be made directly by France to the Com- 
pany, and not to the Government of Great Britain ; so that 
" by this means, the title of the Company is acknowledged, 
and they will come into the immediate enjoyment of their 
property without further trouble."! 

From the signing of the Treaty of Utrecht to the signing 
of that of Paris, the Hudson's Bay Company built a few ad- 
ditional posts, but except Henley House, and a trading post 
in the direction of Temiscaming, none of these posts drew 
them away from the shores of the bay. Nor do I see upon 
what principle that any act of the Company could, at that 
time, have enlarged their possessions. The fur-traders, under 
the Government of Canada, had for half a century traversed 



* Bolingbroke's Correspondence, vol. 3. Appendix P. 

t Dartmouth to Lords of Trade, May 27th, 1714. Appendix O. 



part II. NORTHERN BOUNDARY OF ONTARIO. 127 

the country between the great lakes and the bay, westward 
to Lake Winnipeg, and when the French had gone from 
Quebec, from Mackinac, and from Nipigon, to Hudson's Bay, 
and captured the forts of the Company, which were subse- 
quently recognized as rightfully belonging to them, it could 
scarcely be held that it was possible for the Company to 
extend their dominion over any part of the country east of 
Lake Winnipeg and Nelson's river, without encroaching 
upon Canada. 

In 1718 the Company built a wooden fort upon the 
Churchill Eiver, called The Prince of Wales Fort.=* 

In 1730 they built one fort upon the Moose River, and 
another small one on the East Maine. 

In 1744 they built Henley House, 150 miles up the Albany 
river, so as to share the trade in a larger degree with the 
French, who had twenty-seven years earlier built a fort near 
the source of that river.f 

They did not enter the Valley of the Saskatchewan until 
the end of the last century, nor that of the Red River until 
the beginning of this. I have stated in the first part of this 
report, that the Charter of the Hudson's Bay Company was 
not intended to confer a title to a country already possessed 
by the Crown. It was, as it professes to be, and as many 



* Hearne says it was built in 1721. 

f It seems the French had been in the habit of trading about Lake St. Joseph's 
and the Head Waters of the Albany river long before Lieutenant Noue was sent 
thither (1717) to establish a fort. In fact, he could not have been ordered to estab- 
lish a fort at a lake near Lake Christinaux unless the country had been thoroughly 
explored before, and the propriety of making it the centre of a trade determined. 
M. de Denonville, in writing to M. Seignelay, August 25th, 1687, says : " Du L'Hut's 
brother, who has recently arrived from the rivers above Lake Alernmipigons, assures me 
that he saw more than 1,500 persons come to trade with him. They were very sorry 
that he had not sufficient goods to satisfy them. They are of the tribes accustomed to 
resort to the English of Port Nelson or River Bourbon, where they sa> they did not go 
through Sieur Du L'Hut's influence. It remains to be seen whether they speak the 
truth. The overland route to them is frightful, on account of its length, and of the 
difficulty of finding food. He says there is a multitude of people beyond these, and 
that no trade is to be expected except by sea, for the expense is too great." — N. Y. 
Historical Collection, vol. 9, p. 343. 



L28 NORTHERN BOUNDARY OF ONTARIO. Part II. 

earlier charters were, a commission from the King to make 
discoveries. It is true that the Company constituted by the 
Charter, were informed that the King expressly excepted 
from the grant the possessions of other Christian Princes. 
But the King could not convey what he did not have, and it 
cannot for a moment be maintained that either by actual pos- 
session or by discovery, any claim could at that time be set up 
to the country in the interior. If it be admitted that the 
King had the power to grant such a charter — and I am not 
here questioning his right to do so — it could not be held to 
convey more territory than was in his possession at the time, 
unless it subsequently became English territory by the enter- 
prise of the company to whom the grant was prospectively 
made.* The Company, by the terms of their Charter, as- 
suming it to have been valid, were the commissioned agents 
of the Crown for the purpose of extending the sovereignty 
of England in the region about Hudson's Bay. They made 
no effort under their Charter to extend the King's dominions. 
They, as time advanced, laid claim to more and more terri- 
tory. This they did as the country became known to them 
through the explorations of the French. 

The French, by the Treaty of Utrecht, surrendered the 
Bay and Straits of Hudson ; but they pushed on with all the 
more energy their explorations of the interior. They estab- 
lished trading posts in the country north of Lake Superior 
and Lake Nipigon, which had thirty years earlier been ex- 
plored by Du L'Hut and others. It was in 1666 or 1667 that 
Eadisson and Des Grosseliers crossed from Lake Superior to 
Hudson's Bay, and it is highly probable that they did what 
M. Denonville says — they went over a country that the 
French fur-traders had before explored, "f* 

Thomas Jeffery, Geographer to the King of England, in 
his account of the French dominions in North America, 

* Great doubt was expressed in the case of the Duke of York, as to whether a 
grant could be made valid by the subsequent acquisition of the country, 
t M. Denonville to M. de Seignelay, Nov. 18, 1686. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 129 

marks the northern boundary of Canada as extending along 
the height of land between Lake "Winnipeg and Hudson's 
Bay, crossing Nelson river at what is marked upon his map 
as Lake of the Forts, and upon more recent maps as Split 
Lake. He says that, " At the mouth of the Three Kivers 
(Kamenistiquia) is a little French fort called Camenista- 
gonia,* and twenty-five leagues to the west of the said fort, 
the land begins to slope, and the river to run towards the 
"West. At ninety-five leagues from the greatest height lies 
the second establishment of the French that way, called Fort 
St. Pierre, in the Lake Des Pluies. The third is Fort St. 
Charles, eighty leagues further on, on the Lake Des Bois. The 
fourth is Fort Maurepas, a hundred leagues distant from the 
last, near the head of the Lake Ouinipigon. Fort La Reine, 
which is the fifth, lies a hundred leagues further, on the river 
of the Assiniboils. Another fort had been built on the River 
Rouge, but was deserted, on account of its vicinity to the two 
last. The sixth, Fort Dauphin, stands on the west side of 
Lac Des Praries, or of the Meadows. The seventh, which is 
called Fort Bourbon, stands on the shore of the G-reat Lake 
Bourbon. The chain ends with Fort Poskoyac, at the bottom 
of a river of that name, which falls into Lake Bourbon. The 
River Poskoyac is made by De Lisle and Bauche to rise 
within twenty -five leagues of their west sea, which they say 
communicates with the Pacific Ocean. All these forts are 
under the Governor of Canada." f 

These settlements of the French carry Canada beyond the 
watershed of the St. Lawrence, and if any one will examine 
into the claims of the respective parties, he can have little 

* The design of building Fort Camanistigoyan, on Lake Superior : " 'Tis some 
years since Mr. Dulhut built a fort upon this lake, where he had made large maga- 
zines of all sorts of goods. That fort was called Camanistigoyan, and did consider- 
able disservice to the English settlements in Hudson's Bay."— La Hontan's Memoirs 
of North America, p. 214. 

f Jeffery's French Dominions in America, p 19 ; taken from Remarks upon the 
Map of America, by N. Bellin, Paris, 1755. See also the works of Henry Carver, 
and La Hontan. 
K 



130 NORTHERN BOUNDARY OF ONTARIO. Part il 

doubt to whom the territory north-west of Lake Superior by- 
right belonged. 

The Charters granted to Sebastian Cabot, to Sir Humphrey 
Gilbert, to Sir Walter Raleigh, to the London Company, and 
to the Plymouth Company, show very clearly that the policy of 
the Crown was to extend by such agencies its dominion over 
North America. They embraced vast tracts of territory of 
which England was never able to claim the sovereignty. 
Such unlimited grants can only be understood in this sense, 
that the Crown did not wish to set limits to the extension of 
its dominions by the discoveries of its own subjects. Its pos- 
sessions hi the neighbourhood of Hudson's Bay, if it had any, 
were to be enlarged by the discoveries and settlements of 
the Company, it could not well set definite limits to the terri- 
tories granted by the Charter, except such as were possessed 
by other British subjects, or by the subjects of other Christian 
States. It is, indeed, very doubtful whether such a grant 
would prevent future explorations and settlements by other 
British subjects beyond the country actually appropriated by 
the Company. Had it been possible for other subjects of the 
King of England to have gone to the head waters of the 
Nelson, the Albany, or the Severn rivers without entering the 
bay, and to have formed settlements there, which were not 
reached by the Company for half a century, who^ will hold 
that they would have been, from the beginning, trespassers 
upon the property of the Company ? But whatever doubt 
might exist in the mind as to other British subjects, in such a 
case, there can be no doubt as to the rights of the subjects of 
a foreign prince. A right of sovereignty attends, as a neces- 
sary consequence, upon the establishment of a nation in an 
unsettled or barbarous country. A nation may so establish 
itself either by immigration in a body or by sending forth 
colonies ; and when a nation so takes possession, the country 
becomes a part of the parent state.* 

The right of dominion in a nation corresponds to the right 

* Vattel's Law of Nations, book 1, sections 205-210. 



Part II. 



NORTHERN BOUNDARY OF ONTARIO. 131 



of property in an individual. When a nation occupies a 
vacant country, it imports its sovereignty into the country. 
A nation differs from an individual in this — when an individ- 
ual settles in a country in which he finds no previous owner, 
he cannot arrogate to himself an exclusive right to the coun- 
try, or to its government, unless some sovereign authority has 
delegated to him power to do so.* 

" The exclusive right," says Wheaton, " of every individual 
State to its territory and other property, is founded upon the 
title originally acquired by occupancy, and subsequently con- 
firmed by the presumption arising from the lapse of time, 
and by treaties and other compacts with foreign States."! 

To constitute a valid territorial title by occupation, the ter- 
ritory must be previously vacant, and the State must intend to 
take and maintain possession. The cJaims of European nations 
to possessions held by them in the New World discovered 
by Columbus and other adventurers, was originally derived 
from discovery, or conquest, or colonization .% 

When Mendoza, the Spanish Ambassador, remonstrated 
against the expedition of Drake, Queen Elizabeth replied : 
" That she did not understand why either her subjects or 
those of any other European Prince should be deprived of 
traffic in the Indies ; that as she did not acknowledge the 
Spaniards to have any title by the donation of the Bishop of 
Rome, so she knew no right that they had to any places other 
than those they were in actual possession of. For that their 
having touched only here and there upon a coast, and given 
names to a few rivers or capes, were such insignificant things 
as could in no wise entitle to a propriety, further than in parts 
where they actually settled, and continued to inhabit ."§ 

Elizabeth, in refusing to recognize the double Spanish title 
by exploration and investiture, put it out of the power of her 



* Vattel's Law of Nations, book 2, section 96. 

t Wheaton's International Law, chap. 4., sec. 161. 

+ Wheaton's International Law, chap. 4, section 165. 

§ Camden's Annals, anno 1580 (edit Hearne, 1717), p. 360. 



132 NORTHERN BOUNDARY OF ONTARIO. 



Part IT. 



successors to found any claim upon the discoveries of Cabot, 
Hudson, Fox, and others who sailed into Hudson's Bay. 

In 1824, Mr. Eush, in a letter to Mr. Adams, said that Great 
Britain " could never admit that the mere fact of Spanish 
navigators having first seen the coast at particular points, 
even where this was capable of being substantiated as a fact, 
without any subsequent or efficient acts of sovereignty or settlement 
following on the part of Spain, was sufficient to exclude all other 
nations from that portion of the globe .'^ 

The principle recognized and maintained by the United 
States is " that prior discovery gives the right to occupy, pro- 
vided that occupancy takes place within reasonable time, and 
is followed by permanent settlement, and by the cultivation 
of the soil."f 

In the discussion that took place between Russia and the 
United States in respect to the boundary upon the North- 
West coast of America, the Chevalier de Poletica, the Russian 
Minister at "Washington, laid down the following doctrine as 
a basis upon which a Government may fairly claim the 
sovereignty of a country: "The title of first discovery, the 
title of first occupation, and in the last place, the peaceable and 
uncontested possession for more than half-a-century." % 

The same doctrine was stated in 1826 by the British Com- 
missioners, Messrs. Huskisson and Addington, for the settle- 
ment of the boundary between the United States and British 
America. They say : " Upon the question how far prior dis- 
covery constitutes a legal claim to sovereignty, the law of 
nations is somewhat vague and indefinite. It is, however, 
admitted by the most approved writers that mere accidental 
discovery, or receiving the sovereignty from the natives, constitutes 
the lowest degree of title ."§ • 

" Soon after," says C. J. Marshall, " Great Britain deter- 

* State Papers 1825-1826, p. 512. 

f Mr. Gallatin, in Appendix to Greenhow's Oregon Boundary ; also Twiss' Oregon 
Question, p. 105. 
X British and Foreign State Papers, 1821-2, p. 485. 
§ London Conference, Dec. 16, 1826. 



Part II. 



NORTHERN BOUNDARY OF ONTARIO. 133 



mined on planting colonies in America, the King granted 
charters to companies of his subjects who associated for the 
purpose of carrying the views of the Crown into effect, and of en- 
riching themselves. The first of these charters was made 
before possession was taken of any part of the country ; they 
purport generally to convey the soil from the Atlantic to the 
South Sea. This soil was occupied by numerous and warlike 
nations, equally willing and able to defend their possessions. 
The extravagant and absurd idea that the feeble settlements 
made on the sea coast, or the companies under whom they 
were made, acquired legitimate power by them to govern the 
people, or occupy the lands from sea to sea, did not enter 
the mind of any man. They were well understood to con- 
vey the title, which, according to the common law of Euro- 
pean sovereigns respecting America, they might rightfully 
convey, and no more. This was the exclusive right of pur- 
chasing such lands as the natives were willing to sell. The 
Crown could not be understood to grant what the Crown did not 
affect to claim, nor was it so understood."* 

It will hardly be contended by the Government of Canada, 
that, because the Hudson's Bay Company had established cer- 
tain posts and forts at the mouth of some of the rivers that 
empty into the bay, that this gave to the Company, or to the 
Crown of Great Britain the right to all the countries through 
which rivers flow to the bay. A pretension of this kind was 
put forward by the United States, for the purpose of estab- 
lishing a claim to the entire valley of the Columbia river 
and its tributaries, and it was at the time expressly repudiated 
by Great Britain. 

It is a principle as well settled as any in international law, 
that rivers are no more than appendages of the countries 
through which they run, and a settlement upon the coast 

* Worcester v. The State of Georgia, 6 Peter's R. Note.— Gilbert's patent, made 
the 11th of June, 1578, authorized him to discover and occupy any remote, heathen, or 
barbarous lands not actually possessed of any Christian prince or people. — Hazard's 
Hist. Col., vol. 1., p.p. 24-28. 



134 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



gives possession to the country in the rear, only so far as it 
bars the approach to the interior of the country.* 

By the Tenth Article of the Treaty of Utrecht, the French 
restored to the English, " Hudson's Straits and Bay, and all 
the lands, seas, sea-coasts, rivers and places situated in the said 
Bay and Straits, and which belong thereunto, no tracts of land 
or sea being excepted which are at present possessed by the 
subjects of France." 

It is true, that, was it not for the use of the word restore 
in the Treaty, the expressions employed are very compre- 
hensive ; but this one word limits all general words of 
description to what was once in the actual possession of 
England. If this were not the case, there would have been 
no propriety in inserting the additional terms for the cession 
of tracts of land in the possession of French subjects.! 

Had the word cessio n been used instead of restoration, the 
terms all lands, seas, sea-coasts, etc., would certainly have 
been broad enough to have conveyed the entire coasts of the 
bay ; but it would seem that, for the purpose of maintaining 
that Charles the Second had the right to make a grant of some 
part of the coast, and in this way to give color to the claims 
of the Company, the word restoration was insisted on, and, 



* See correspondence between the Governments of England and the "United States, 
relative to the Oregon boundary, and the discovery of the Columbia River. — State 
Papers, 1845-6. 

| Hudson's Bay, which was one of Canada's most lucrative establishments, has 
been ceded to the English by the Treaty of Utrecht, under the denomination or title 
of restitution. They carry on a profitable trade there ; but the excessive cold, and 
difficulty of subsistence, will never permit them to form establishments there capable 
of affording any uneasiness to Canada — and if the strength of the latter country be 
augmented, as proposed, 'twill possibly be in a condition in the first war to wrest Hud- 
son's Bay from the English. 

The Treaty of Utrecht had provided for the appointment of commissioners to regu- 
late the boundaries of Hudson's Bay ; but nothing has been done in that matter. The 
term " restitution" which has been used in the Treaty, conveys the idea clearly that 
the English can claim only what they have possessed, and as they never had but a few 
establishments on the sea-coast, 'tis evident that the interior of the country is consi- 
dered as belonging to France. — Memoir on the French Colonies in North America, by 
M. de la G-aUisseioniere, Paris, Doc. 10.— N. Y. Hist. Col., vol. 10, p. 225. 



part II. NORTHERN BOUNDARY OF ONTARIO. 135 

therefore, further words of conveyance became necessary to 
put England in possession of the entire coast. 

This fact must not be overlooked, that while France con- 
sented by this Article of the Treaty to transfer to England 
possessions which had not been hers before ; she at the same 
time refused to agree to it in its present form until the English 
Government made known the extent of country they claimed, 
because she was resolved not to surrender all that might, 
otherwise, be demanded. The letters of the Marquis de 
Torcy and Mr. Prior establish beyond question that the resto- 
ration referred to was greatly restricted by the lines drawn 
upon the map, which must be regarded as a necessary part of 
the Treaty. The French Grove rnment had, as Mr. Prior ad- 
mits, expressed their fears that a large extent of country 
would be demanded from them under the Treaty. They re- 
membered the former pretensions of England, and it was to 
prevent the possibility of her insisting upon being put in pos- 
session of all she had ever claimed, that a map was brought 
into requisition, and lines drawn by the plenipotentiaries of 
the two governments, showing beforehand how each party 
to the Treaty understood it. They were drawn to construe 
the Treaty, not in the interest of England, but in the interest 
of France, and in order that she might be protected against a 
demand for as much territory as the Treaty would, otherwise, 
seem to entitle England to claim. 

It is true that Fortifications and Military Posts are some- 
times expressly mentioned as having been ceded or restored, 
when there has already been a stipulation for the transfer of 
the entire country in which they are situated ;* and had the 
Treaty only mentioned the Posts and Forts in the possession 
of the French, in addition to the general words of restoration, 
it might have been very properly argued that they were 
within the territory to be restored ; but the words of the 

* See the Discussion Between the Governments of England and France, on the 
Limits of Nova Scotia, as to the effect of mentioning the cession of certain forts, as 
well as " all Acadia."— J1qt Majesty's Rights in Acadie, 1756. 



136 NORTHERN BOUNDARY OF ONTARIO. Part IL 

Treaty show that however comprehensive the terms of resto- 
ration might be, the English did not think them alone suf- 
ficient to secure the transfer of the entire coasts of Hudson's 
Strait and Bay. 

I have already quoted the Articles of the Treaty of Ryswick, 
by which it was stipulated that all Places and Forts estab- 
lished on the shores of Hudson's and James' bays by the Hud- 
son's Bay Company, became the property of France. 

I am of opinion that these stipulations extinguished what- 
ever rights the Company had by their Charter, and that they 
were not revived by a retrocession of the country to Great 
Britain by the Treaty of Utrecht. 

As a general rule, when a Government comes into posses- 
sion of property which belonged to its subjects, and which 
had been captured by an enemy, it restores the property to 
the original owners. So far as it can, it puts them upon the 
same footing as that in which they stood before the capture.* 
It is, too, the rule and the practice for the conqueror to re- 
spect the right to private property in the soil when a country 
is conquered. But to both these rules there are important ex- 
ceptions. " Where a territory," says Halleck, " has been ac- 
quired by conquest, and confirmed to the conqueror by a 
Treaty of Peace, the right or title of the new sovereign is not 
that of the original possessor, and therefore is not subject to 
the same limitation or restriction. It originated in force, and 
dates back to the conquest. A subsequent restoration of such 
territory to its former sovereign is regarded in law as a retro- 
cession, and carries with it no right of postliminy. When 
the inhabitants of such conquered territory become a part of 
the new State, they must bear the consequence of the transfer 
of their allegiance to a new sovereign ; he is in turn to be 
regarded as a conqueror, and they cannot claim, as against him, 
any rights of postliminy. The correctness of the principle of 
international law is never disputed."! 

* Vattel, book 3, section 205. 

+ Halleck's International Law, chapter 35, section 9. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 1ST 

Vattel might seem to a careless reader to lay down a differ- 
ent doctrine, but when carefully examined, it will be found to 
be substantially the same. He says : " Provinces, towns, and 
lands which the enemy restores by the Treaty of Peace are 
certainly entitled to the right of postliminium ; for the sovereign, 
in whatever manner he recovers them, is bound to restore them 
to their former condition as soon as he regains possession of 
them (§205). The enemy in giving back the town at the 
peace, renounces the right he had acquired by arms. It is 
just the same as if he had never taken it, and the transaction 
furnishes no reason which can justify the sovereign in re- 
fusing to reinstate such town in the possession of all her 
rights, and restore her to her former condition. But what- 
ever is ceded to the enemy by a Treaty of Peace is truly and 
completely alienated. It has no longer any claim to the right 
of postliminium unless the Treaty of Peace be broken and 
cancelled."* The restoration here spoken of is not a retro- 
cession of territory, the title to which has already been vested 
in the conqueror, but the restoration of territory at the peace 
immediately following the war in which the conquest was 
made ; and in that event the adverse possession is regarded 
rather as a belligerent occupation than a conquest.^ 

The Hudson's Bay Company were not simply private 
owners of a great estate, endowed by their Charter with 
limited powers of G-overnment. They built forts, and armed 
them. Their valuable property in the vicinity of Hudson's 
Bay was such as belongs to a State rather than to a citizen. 
Had their forts and posts been re-captured during the war 
preceding the Treaty of Eyswick, and left to the English by 
the Treaty, it would have been the duty of the G-overnment 
to have placed the Company in the position they stood before 

* Vattel's Law of Nations, book 3, sections 214 and 215. 

t 3 Washington C. C. Rep. 101 ; 8 Wheaton's R. 591 ; 12 Peter's R. 410 ; Halleck's 
Int. Law 840, 841 ; 2 Dallas R. 1 ; 1 Cowp. R. 165 and 205 ; 2 East R. 260 ; 4 Mod. 
R. 225. Conquest does not per se give the conqueror plenum dominium et utile, but a 
temporary right of possession and government.— 2 Gallis. R. 486. 



138 NORTHERN BOUNDARY OF ONTARIO. Part 1L 

the capture.* But this rule does not apply where the rights 
of the original owners have been once extinguished.! The 
Hudson's Bay Company were not recognized by France as or- 
dinary proprietors of the soil, who continued in possession of 
their lands under a change of sovereignty. They were re- 
garded as a great public corporation, acting on behalf of their 
G-overnment, whose rights must stand or fall with the autho- 
rity of the G-overnment which created them a corporation. 
This may be taken as the Common Law of the European 
States that were seeking to establish their authority upon this 
continent. Their conduct and policy, during the seventeenth 
and eighteenth centuries, show conclusively that companies 
such as this one were looked upon as great political corpora- 
tions, whose rights and franchises were created mainly to ex- 
tend the power and authority of the sovereign who chartered 
them, and that they had, therefore, no rights as private owners 
which a foreign state was, in case of conquest, bound to re- 
spect. They were looked upon as the custodians of political 
power rather than as private citizens, and were dealt with ac- 
cordingly. It was in this way that the English dealt with the 
Quebec Company, and the Treaty of Utrecht recognizes the 
principle in express terms. 

The case of the Duke of York, under the charters granted to 
him, well illustrates the principle. On the 12th of March, 1664, 
O. S., the King granted, by Royal patent, to his brother James, 
Duke of York and Albany, all the lands and rivers from the 
west side of the Connecticut river to the east side of Delaware 
bay. His patent also embraced Long Island and the islands 
in the neighbourhood. These had before been granted to Lord 
Stirling, but he had released his title before the grant was 
made to James. This patent conveyed a part of Connecticut 
and the whole of New Netherlands. James was at the time 
Lord High Admiral. He took four ships of war to give effect 
to his patent, and to put himself in possession of his new 

* Vattel's Law of Nations, book 3, section 205. 

t Halleck's Int. Law, 840, 1, 2. Phillimore's Int. Law, vol. 3, p.p. 568-572. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 139 

estate. These were put under the command of Colonel 
Nicolls, who had associated with him Sir H. Carr, Colonel 
G-. Carteret, and Samuel Moverick (who "was a commissioner 
to the New England colonies), requiring them to assist in the 
conquest of the country granted to the Duke. On the 20th 
of October, N. S., the conquest of New Netherlands was com- 
pleted, and James went into possession. Three years later 
the sovereignty of the country was confirmed to England by 
treaty. In 1773, war again broke out between England and 
the United Provinces, and the country was re-conquered by 
the Dutch. By the Sixth Article of the Treaty of Westmin- 
ster, which was ratified on the T % of February, 167|, the 
United Provinces relinquished their conquest of new Nether- 
lands to the King of England. 

It was claimed that James' former proprietorship in 
America revived by the restoration of the Province to the 
King of England, especially as the Treaty of Westminster 
re-established the Articles of Capitulation between Nicolls 
and Stuyvesant, in 1664. The Treaty of Breda confirmed the 
conquest to England upon the principle of uti possidetis. 

There were two grounds upon which the validity of the 
Charter was questioned by eminent lawyers — the one that 
the country was in the possession of the Dutch when the 
Patent was made ; the other, that the conquest of the Dutch 
extinguished the title, if good before. The opinion of counsel 
having been taken, they advised that " the Duke's rights had 
been extinguished by the Dutch conquest, and that the King 
alone was now seized of New Netherlands, by virtue of the 
Treaty of Westminster. The jus postliminii did not obtain 
where there had been a complete change of sovereignty." A 
new Patent was accordingly issued on the 29th of June, 
1674.* f It may not be always easy to say whether there 

* Broadhead's History of New York, vol. 2, ch. 5, 6 ; 1 Kent's Commentaries, 
p.p. 108-111 ; 2 Douglass, p.p. 224-268. 

+ The colony of Pemaquid was conquered by D'Iberville in 1689. It was restored 
to the English by the Treaty of Ryswiok, but they did not obtain possession, it seems, 



140 NORTHERN BOUNDARY OF ONTARIO. Part II. 

has been a suspension or an extinguishment of a right by 
conquest and restoration. The principle recognized in this 
case seems to have been this — that where there has been not 
only belligerent occupation, but the establishment of civil au- 
thority, and the people have been so far reconciled to their 
new masters as voluntarily to recognize their authority, there 

before the war of 1702. It was re-conquered by General Nicholson, and the law offi- 
cers of the Crown were consulted as to whether the right to the lands was in the 
Crown, or whether the Charter granted before the conquest, was still in force. They 
answered : "As to the question stated in the Case, upon the effect of the conquest of 
this tract of country by the French, and the re-conquest thereof by General Nichol- 
son, we conceive that the said tract, not having been yielded by the Crown of England 
to France by any treaty, the conquest thereof by the French created, according to the 
law of nations, only a suspension of the property of the former owners, and not an ex- 
tinguishment of it ; and that upon the re-conquest by General Nicholson, all the 
ancient right, both of the Province and of private persons subjects of the Crown of 
Great Britain, did revive, and were restored jure postliminii. The rule holds the 
more strongly, in the present case, in regard it appears by the affidavits that the Pro- 
vince joined their forces to those which came thither under the command of General 
Nicholson, in this serrice " P. Yokke. 

Aug. 11, 1731. C. Talbot. 

" A long possession, accompanied with an equitable government, may legitimate a 
conquest, in its beginning and principle the most unjust. There are modern civilians 
who explain the thing somewhat differently. These maintain that in a just war the 
victor acquires the full right of sovereignty over the vanquished, by the single title of 
conquest, independently of any convention ; and even thotigh the victor has other- 
wise obtained all the satisfaction and indemnification he could requir e. 

" The principal argument these writers make use of is, that otherwise, the conqueror 
could not be certain of the peaceable possession of what he has taken, or forced the 
conqueror to give him for his just pretensions, since they might retake it from him by 
the same right of war. 

"But this reason proves only that the conqueror who has taken possession of an 
enemy's country, may command in it while he holds it, and not resign it till he has 
good security that he shall obtain or possess, without hazard, what is necessary for the 
satisfaction and indemnity which he has a right to exact by force. But the end of a 
just war does not always demand that the conqueror should acquire an absolute and 
perpetual right of sovereignty over the conquered. It is only a favourable occasion of 
obtaining it ; and for that purpose there must always be an express or tacit consent of the 
vanquished.* Otherwise, the state of war still subsisting, the sovereignty of the con- 
queror has no other title than that of force, and lasts no longer than the vanquished 
are unable to throw off the yoke." — Burlamaqui's Politic Law, part 4, chap. 8, sections 
8, 9, and 10. 

* The consent of the conquered in New York, and the want of it in Pemaquid, 
may explain the difference of the rule in the two cases. New York was restored after 
the war ; Pemnaquid was retaken during the war. 



Part II. NORTHERN BOUNDARY OF ONTARIO. 141 

is in law, as well as in fact, a change of sovereignty * But 
there can be no doubt that the right of postliminy does not obtain 
where a recognized change of sovereignty has intervened between 
the conquest and the restoration. 

It is worthy of note that the Duke of York, upon the au- 
thority of his first patent, conveyed that portion of his grant 
lying between the Hudson and Delaware rivers, to Lord 
Berkeley and Sir George Carteret, and which was named 
New Jersey as a compliment to Sir G-eorge, who had been 
G-overnor of the Island of Jersey during the Civil War, and 
held it for the King. Berkeley sold his rights to Edward Bil- 
linge. Billinge, who was greatly in debt, consented to sell his 
part for the benefit of his creditors, and William Penn. G-awen 
Lawrie, and Nicholas Lucas, were appointed trustees for the 
purpose. In 1676 they divided the territory with Sir G-eorge 
Carteret, he taking the eastern and they the western portion. 

This country fell into the hands of the Dutch at the time 
they retook New York, and it was by the Treaty of West- 
minster restored to England, but the titles of the settlers. 
which were derived through the Duke of York from the first 
Patent granted by the King, were unquestioned. Unlike that 
of James, they were unaffected by the conquest.^ 

* In the case of the colony at Pemaquid, they assisted in the expulsion of the 
French. Pf eiff er says there can never be a change of sovereignty so long as the war 
continues during which the conquest was made ; but a different principle was recog- 
nised when the Dutch retook New York — for the peace which followed the conquest, 
gave back the territory to England. A belligerent who has not succeeded to the 
sovereignty of a country which he holds by military force, has no right to play the 
part of a public creditor to the country held by military duress, nor can the country 
subsequently be held responsible for what he may do . But where there has been a 
change of sovereignty, the rule is different. In the case of Murat, who drove Ferdi- 
nand IV. , King of the two Sicilies, from one-half his dominions, and committed out- 
rages upon American shipping and commerce, the Government of the United 
States held Ferdinand responsible upon his restoration, on the ground that Murat was 
King with the consent of those whom he governed, and was, therefore, not an enemy 
holding the country against the consent of the nation. Ferdinand must in that case 
be regarded as his successor.— See Note 169 to the 8th Edition of Wheaton, by Pv. H. 
Dana. 

% See the opinions of Sir William Jones and Sir Clement Wearg in the New Jersey 
Historical Collection. 



142 NORTHERN BOUNDARY OF ONTARIO. 



Part II. 



"Whatever may be thought of the intentions of Bolingbroke 
and Dartmouth towards the Hudson's Bay Company, there 
cannot be much doubt that those who succeeded them, recog- 
nized the legal effect of the Treaty of Eyswick upon the 
claims of the Company. In their instructions to the English 
commissioners at Paris for settling the boundary between 
Canada and the territory restored to England about the bay, 
they direct them " to take special care in wording such Arti- 
cles as shall be agreed upon with the Commissioners of His 
Most Christian Majesty upon this head — that the said bound- 
aries be understood to regard the trade of the Hudson's Bay 
Company onlyT 

The Government, it would seem, were prepared to restore 
to the Company a right to trade with the Indians, but were 
not disposed to recognize in the Company any powers of gov- 
ernment, or any property in the soil. When the King, by an 
Order in Council, in August, 1791, divided Quebec into Upper 
and Lower Canada, and extended the separating line " north- 
ward to the boundary of Hudson's Bay," he did not recognize 
in the Company any rights of property or of government 
which this extension could take away. So, too, when that 
portion of Lower Canada which lay between the River St. 
John and the Atlantic Ocean, was severed from Lower 
Canada, in 1809, and re-annexed to Newfoundland, it em- 
braced the country northward to Hudson's Straits, which 
did, beyond question, annex to Newfoundland part of the 
country covered by the Charter of the Company* The 
action of the King in the one case, and Parliament in the 
other, would seem to show that they did not regard the pre- 
tensions of the Hudson's Bay Company as presenting any 
obstacle to the extension of the Provinces upon the south to 
the shores of the straits and the bay. 

We have seen that the French posts, forts, and settle- 
ments extended beyond the water-shed of the St. Lawrence 
to the head water of the Albany river, to the Saskatchewan, 

* See 49 Geo. 3, c. 27, sec. 14. 



Part II. 



NORTHERN BOUNDARY OF ONTARIO. 143 



and to Lake Winnipeg. If the map referred to by Prior and 
the Marquis De Torcy as the one used by the plenipotentiaries 
in 1713, and the one mentioned by M. de Mofras, which was 
used by Bedford and De Choiseul in 1763, cannot be found, 
still I apprehend a boundary may be laid down in conformity 
with the Treaty of Utrecht and the Order in Council of the 
19th of August, 1791, by a line drawn midway between the 
English posts upon the shores of the bay on the one side, and 
the French posts upon the head waters of the Albany river 
and Lake Winnipeg upon the other, which line will fix the 
western limit of the territory restored by France under the 
Treaty of Utrecht. In my opinion, the territory about James' 
bay to the south of the Albany river was made a part of Upper 
Canada by the Order in Council referred to, if it was not so 
before. 

The United States, in their discussions with Spam respect- 
ing the western boundary of Louisiana, mentions, in a case 
like this, the middle distance between two nations' colonies 
as the proper location of the boundary,* and Yattel lays down 
the same rule.f It is in accordance with the facts here set 
forth that the principle is to be applied. A letter from the 
Governor of Canada to Count de Maurepas shows that the 
French had several posts about Lake Nipigon in 1744.$ The 

* British and Foreign State Papers, 1817-18, p. 328. 

t Vattel, book 2, sec. 95. 

+ M. de Beauharnois to Count de Maurepas. — " In regard to the posts on Hudson's 
Bay, and those they have established on this side in the direction of Temiscaming, 
and which His Majesty has been pleased to recommend me to endeavour to neutralize 
or to utterly destroy, if possible ; I have accordingly instructed Sieur Guillet, who 
farms the Post of Temiscaming, and has gained the good opinion and confidence of all 
the nations thereabouts to prevail on them to assemble together in the course of this 
winter in order to fall, at the opening of the spring, as well on Fort Rupert as on the 
other posts in the direction of Hudson's Bay ; I have in like manner, on receiving 
news of the war, sent orders to Michilimackinac, to be transmitted to Alepimigon and 
the other posts in that neighbourhood, so that they may all co-operate in the destruc- 
tion of the English establishments at the north, and among the rest, of that newly 
built, about twenty leagues above Michipicoton, by a Canadian refugee, who has con- 
ducted thither seven or eight Englishmen who trade there ; and I have ordered not 
only the forcible destruction of that establishment, but also that the Cana dian be 



144 NORTHERN BOUNDARY OF ONTARIO. Part u . 

Treaty of Utrecht itself, and trie remonstrances of the Hud- 
son's Bay Company, bear testimony to the fact that the Quebec 
Company and other French fur-traders occupied the country 
from the St. Lawrence and the G-reat Lakes to the shores of 
Hudson's Bay. I know of no principle applicable to the 
case, whether of settlement or of discovery, upon which the 
Hudson's Bay Company could, after 1713, extend their domin- 
ion beyond the line marked upon the map of the plenipoten- 
tiaries, even admitting their chartered rights to have been un- 
impaired by the conquest and the Treaty of Kyswick. 

What I have so far written is sufficient to show that if it is 
admitted that England formed the first settlements upon the 
bay, they would not, by any established rule of public law, give 
her a right to the entire basin ; that this could only be claimed 
by a country which possessed both the entire shore, and the only 
means of access to the interior ; that the possession of the mouth 
of a river does not draw with it the entire country drained by 
the river ; on the contrary, it is the possession of the country 
that draws along with it the possession of the rivers ; that the 
Treaty of Utrecht circumscribed the possessions restored to 
England about the Bay within very narrow limits, when com- 
pared with the modern pretensions of the Company — limits 
which must have fallen far short of the sources of all the great 
rivers that disembogue their waters into Hudson's Bay ; and 
that the Order in Council of 1791, by which Quebec was di- 
vided into two Provinces, included, in Upper Canada, that sec- 
tion of the country which was restored to G-reat Britain in 

killed if it be impossible to seize him. I have also given Sr. Guillet notice that I 
should, at the very opening of spring despatch a party of Frenchmen and Indians, 
under the command of an officer and some others, so as to make a simultaneous attack 
on these posts. Sr. Quillet is to warn these Indians of this expedition, in order that 
they may hold themselves in readiness to join it, and, in fact, I calculate on sending it 
thither as soon as the season will permit, and I beg you, my Lord, to assure his Ma- 
jesty that I will not neglect anything to utterly destroy, if possible, the English estab- 
lishments in that quarter, as well as all those the difficulties whereof I shall be able to 
surmount.— 8th October, 1744."— Paris Doc. 8.— N. Y. Hist. Col., vol. 9, p. 1,105. 

" Have not been able to make the attack, on account of the want in the King's 
stores. -June, 1745."— Paris Doc. 9.— N. Y. Hist. Col., vol. 10, p. 2. 



part II. NORTHERN BOUNDARY OF ONTARIO. 145 

1713, which lies about the south- western part of James' Bay. 
This extension to the boundary of Hudson's Bay, instead of 
stopping at the line of the Treaty of Utrecht upon the south, 
and following it, would seem to point to the establishment of 
the Albany river, or the 5 3rd parallel of north latitude, west- 
ward to the limitary line under the Treaty, as a contemplated 
boundary. I am not aware that any such limitary line was 
ever formally established. But the facts here recounted 
prove that the most restricted limits which can be given to 
Ontario on the north, is to run due west from James' Bay to 
the international boundary of 1713,* thence in a north-westerly 
direction to the Split Lake, in Nelson's river, thence south- 
westerly along Nelson's river towards Lake Winnipeg, and 
thence westerly to the north of the Saskatchewan as far as 
the junction of the north and south branches of that river, 
meeting near that point the western limit of Quebec under 
the Act of 1774. 

I would earnestly recommend the Government to obtain 
tracings of the maps used by the English and French pleni- 
potentiaries in 1713 and in 1763 r and of those sent at different 
times by the Hudson's Bay Company to the Lords of Trade 
and Plantations. I would also recommend them to obtain 
copies of all correspondence between the Governments of 
England and France upon the subject ; a copy of the instruc- 
tions given to the English commissioners appointed under both 
the Treaty of Eyswick and the Treaty of Utrecht, together 
with any reports which they may have made. These maps 
and papers, when obtained, will, in my opinion, be found to 
sustain the views expressed in this report as to the extent of 
territory the Government of Ontario may fairly claim as 
being within the limits of the Province. 

* That is the boundary marked upon the map referred to by Mr. Prior, 



APPENDIX, 



APPENDIX A. 



The Eoyal Charter for incorporating the Hudson's Bay 
Company, granted by his Majesty King Charles the 
Second, in the 22nd year of his reign, A.D. 1670. 

Charles the Second, by the grace of G-od, King of Eng- 
land, Scotland, Prance, and Ireland, Defender of the Paith, 
&c, To all to whom these presents shall come, greeting : 
Whereas our dear and entirely beloved Cousin, Prince 
Rupert, Count Palatine of the Rhine, Duke of Bavaria and 
Cumberland, &c. ; Christopher Duke of Albemarle, William 
Earl of Craven, Henry Lord Arlington, Anthony Lord Ash- 
ley, Sir John Robinson, and Sir Robert Yyner, Knights and 
Baronets ; Sir Peter Colleton, Baronet ; Sir Edward Hunger- 
ford, Knight of the Bath ; Sir Paul Neele, Knight ; Sir John 
Griffith and Sir Philip Carteret, Knights ; James Hayes, 
John Kirke, Francis Millington, William Prettyman, John 
Fenn, Esquires ; and John Portman, Citizen and Goldsmith 
of London : have, at their own great cost and charges, under- 
taken an expedition for Hudson's Bay, in the north-west part 
of America, for the discovery of a new passage into the South 
Sea, and for the finding some trade for furs, minerals, and 
other considerable commodities, and by such their under- 
taking have already made such discoveries as to encourage 
them to proceed further in pursuance of their said design, by 
means whereof there may probably arise very great advan- 
tage to us and our kingdom : And Whereas the said Under- 



148 APPENDIX. 

takers, for their further encouragement in the said design, 
have humbly besought us to incorporate them, and grant unto 
them and their successors the sole trade and commerce of all 
those seas, straits, bays, rivers, lakes, creeks and sounds, in 
whatsoever latitude they shall be, that lie within the entrance 
of the straits, commonly called Hudson's Straits, together 
with all the lands, countries and territories upon the coasts 
and confines of the seas, straits, bays, lakes, rivers, creeks and 
sounds aforesaid, which are not now actually possessed by 
any of our subjects, or by the subjects of any other Christian 
Prince or State : Now know ye, that we, being desirous to 
promote all endeavours tending to the public good of our 
people, and to encourage the said undertaking, have, of our 
especial grace, certain knowledge, and mere motion, given, 
granted, ratified and confirmed, and by these presents, for us, 
our heirs and successors, do give, grant, ratify and confirm, 
unto our said Cousin, Prince Rupert, Christopher Duke of 
Albemarle, William Earl of Craven, Henry Lord Arlington, 
Anthony Lord Ashley, Sir John Robinson, Sir Robert Yyner, 
Sir Peter Colleton, Sir Edward Hungerford, Sir Paul Neele, 
Sir John G-rimth and Sir Philip Carteret, James Hayes, John 
Kirke, Francis Millington, William Prettyman, John Fenn, 
and John Portman, that they, and such others as shall be ad- 
mitted into the said society as is hereafter expressed, shall be 
one body corporate and politic, in deed and in name, by the 
name of " The Governor and Company of Adventurers of 
England trading into Hudson's Bay," and them by the name 
of " The Governor and Company of Adventurers of England 
trading into Hudson's Bay," one body corporate and politic, in 
deed and in name, really and fully for ever, for us, our heirs 
and successors, we do make, ordain, constitute, establish, con- 
firm and declare by these presents, and that by the same name 
of Governor and Company of Adventurers of England 
trading into Hudson's Bay, they shall have perpetual succes- 
sion, and that they and their successors, by the name of " The 
Governor and Company of Adventurers of England trading 



APPENDIX. 149 

into Hudson's Bay," be, and at all times hereafter shall be per- 
sonable and capable in law to have, purchase, receive, possess, 
enjoy and retain lands, rents, privileges, liberties, jurisdictions, 
franchises and hereditaments, of what kind, nature or quality 
soever they be, to them and their successors ; and also to give, 
grant, demise, alien, assign and dispose lands, tenements and 
hereditaments, and to do and execute all and singular other 
things by the same name that to them shall or may appertain 
to do ; and that they and their successors, by the name of 
" The Governor and Company of Adventurers of England 
trading into Hudson's Bay," may plead and be impleaded, 
answer and be answered, defend and be defended, in whatso- 
ever courts and places, before whatsoever judges and justices, 
and other persons and officers, in all and singular actions, 
pleas, suits, quarrels, causes and demands whatsoever, of 
whatsoever kind, nature or sort, in such manner and form as 
any other our liege people of this our realm of England being 
persons able and capable in law, may or can have, purchase, 
receive, possess, enjoy, retain, give, grant, demise, alien, 
assign, dispose, plead, defend and be defended, do, permit 
and execute ; and that the said Grovernor and Company of 
Adventurers of England trading into Hudson's Bay, and their 
successors, may have a common seal to serve for all the causes 
and businesses of them and their successors, and that it shali 
and may be lawful to the said Grovernor and Company, and 
their successors, the same seal, from time to time, at their will 
and pleasure, to break, change and to make anew or alter, as 
to them shall seem expedient : And further we will, and 
by these presents, for us, our heirs and successors, we do 
ordain, that there shall be from henceforth one of the same 
Company to be elected and appointed in such form as here- 
after in these presents is expressed, which shall be called the 
Grovernor of the said Company ; and that the said Grovernor 
and Company shall or may select seven of their number, in 
such form, as hereafter in these presents is expressed, which 
shall be called the Committee of the said Company, which 



150 APPENDIX. 

Committee of seven, or any three of them, together with the 
Governor or Deputy-Governor of the said Company for the 
time being, shall have the direction of the voyages of and for 
the said Company, and the provision of the shipping and 
merchandizes thereunto belonging, and also the sale of all 
merchandizes, goods and other things returned, in all or any 
the voyages or ships of or for the said Company, and the ma- 
naging and handling of all other business, affairs and things 
belonging to the said Company : And we will, ordain and 
grant by these presents, for us, our heirs and successors, unto 
the said G-overnor and Company, and their successors, that 
they the said Governor and Company, and their successors, 
shall from henceforth for ever be ruled, ordered and governed 
according to such manner and form as is hereafter in these 
presents expressed, and not otherwise ; and that they shall 
have, hold, retain and enjoy the grants, liberties, privileges, 
jurisdictions and immunities only hereafter in these presents 
granted and expressed, and no other : And for the better 
execution of our will and grant in this behalf, we have 
assigned, nominated, constituted and made, and by these 
presents, for us, our heirs and successors, WE DO assign, 
nominate, constitute and make our said Cousin, Prince Ru- 
pert, to be the first and present Governor of the said Com- 
pany, and to continue in the said office from the date of these 
presents until the 10th November then next following, if he, 
the said Prince Rupert, shall so long live, and so until a new 
Governor be chosen by the said Company in form hereafter 
expressed : And also we have assigned, nominated and 
appointed, and by these presents, for us, our heirs and succes- 
sors, we DO assign, nominate and constitute, the said Sir John 
Robinson, Sir Robert Yyner, Sir Peter Colleton, James Hayes, 
John Kirke, Francis Millington and John Portman to be the 
seven first and present Committees of the said Company, 
from the date of these presents until the said 10th day of No- 
vember then also next following, and so until new Commit- 
tees shall be chosen in form hereafter expressed : And further 



APPENDIX. 151 

WE will and grant by these presents, for us, our heirs and 
successors, unto the said Governor and Company, and their 
successors, that it shall and may be lawful to and for the said 
Governor and Company for the time being, or the greater 
part of them present at any public assembly, commonly called 
the Court General, to be holden for the said Company, the 
Governor of the said Company being always one, from time 
to time to elect, nominate and appoint one of the said Com- 
pany to be Deputy to the said Governor, which Deputy shall 
take a corporal oath, before the Governor and three or more 
of the Committee of the said Company for the time being, 
well, truly and faithfully to execute his said office of Deputy 
to the Governor of the said Company, and after his oath so 
taken, shall and may from time to time, in the absence of the 
said Governor, exercise and execute the office of Governor of 
the said Company, in such sort as the said Governor ought to 
do : And further we will and grant by these presents, for 
us, our heirs and successors, unto the said Governor and 
Company of Adventurers of England trading into Hudson's 
Bay, and their successors, that they, or the greater part of 
them, whereof the Governor for the time being or his Deputy 
to be one, from time to time, and at all times hereafter, shall 
and may have authority and power, yearly and every year, 
between the first and last day of November, to assemble and 
meet together in some convenient place, to be appointed from 
time to time by the Governor, or in his absence by the Deputy 
of the said Governor for the time being, and that they being 
so assembled, it shall and may be lawful to and for the said 
Governor or Deputy of the said Governor, and the said Com- 
pany for the time being, or the greater part of them which 
then shall happen to be present, whereof the Governor of the 
said Company or his Deputy for the time being to be one, to 
elect and nominate one of the said Company, which shall be 
Governor of the said Company for one whole year then next 
following, which person being so elected and nominated to be 
Governor of the said Company, as is aforesaid, before he be 



152 APPENDIX. 

admitted to the execution of the said office, shall take a corpo- 
ral oath before the last Governor, being his predecessor or his 
Deputy, and any three or more of the Committee of the said 
Company for the time being, that he shall from time to time 
well and truly execute the office of Governor of the said 
Company in all things concerning the same ; and that imme- 
diately after the same oath so taken, he shall and may execute 
and use the said office of Governor of the said Company for 
one whole year from thence next following : And in like sort 
we will and grant that as well every one of the above-named 
to be of the said Company or Fellowship, as all others here- 
after to be admitted or free of the said Company, shall take a 
corporal oath before the Governor of the said Company or his 
Deputy for the time being to such effect as by the said Gover- 
nor and Company or the greater part of them in any public 
court to be held for the said Company, shall be in reasonable 
and legal manner set down and devised, before they shall be 
allowed or admitted to trade or traffic as a freeman of the said 
Company : And further we will and grant by these pre- 
sents, for us, our heirs and successors, unto the said Governor 
and Company, and their successors, that the said Governor or 
Deputy Governor, and the rest of the said Company, and 
their successors for the time being, or the greater part of 
them, whereof the Governor or Deputy Governor from time 
to time to be one, shall and may from time to time, and at all 
times hereafter, have power and authority, yearly and every 
year, between the first and last day of November, to assemble 
and meet together in some convenient place, from time to 
time to be appointed by the said Governor of the said Com- 
pany, or in his absence by his Deputy ; and that they being 
so assembled, it shall and may be lawful to and for the said 
Governor or his Deputy, and the Company for the time being, 
or the greater part of them which then shall happen to be 
present, whereof the Governor of the said Company or his 
Deputy for the time being to be one, to elect and nominate 
sev en of the said Company, which shall be a Committee of 



APPENDIX. 153 

the said Company for one whole year from then next ensuing, 
which persons being so elected and nominated to be a Com- 
mittee of the said Company as aforesaid, before they be ad- 
mitted to the execution of their office, shall take a corporal 
oath before the Governor or his Deputy, and any three or 
more of the said Committee of the said Company, being their 
last predecessors, that they and every of them shall well and 
faithfully perform their said office of Committees in all thmgs 
concerning the same, and that immediately after the said oath 
so taken, they shall and may execute and use their said office 
of Committees of the said Company for one whole year from 
thence next following. : And moreover, our will and 
pleasure is, and by these presents, for us, our heirs and suc- 
cessors, we do grant unto the said Governor and Company, 
and their successors, that when and as often as it shall hap- 
pen, the Governor or Deputy Governor of the said Company 
for the time being, at any time within one year after that he 
shall be nominated, elected and sworn to the office "of the 
Governor of the said Company, as is aforesaid, to die or to be 
removed from the said office, which Governor or Deputy 
Governor not demeaning himself well in his said office, we 
will to be removable at the pleasure of the rest of the said 
Company, or the greater part of them which shall be present 
at their public assemblies, commonly called their General 
Courts, holden for the said Company, that then and so often 
it shall and may be lawful to and for the residue of the said 
Company for the time being, or the greater part of them, 
within a convenient time after the death or removing of any 
such Governor or Deputy Governor, to assemble themselves 
in such convenient place as they shall think fit, for the elec- 
tion of the Governor or Deputy Governor of the said Com- 
pany ; and that the said Company, or the greater part of 
them, being then and there present, shall and may, then and 
there, before their departure from the said place, elect and 
nominate one other of the said Company to be Gov- 
ernor or Deputy Governor for the said Company 



154 APPENDIX. 

in the place and stead of him that so died or was 
removed ; which person being so elected and nominated to 
the office of Governor or Deputy Governor of the said Com- 
pany, shall have and exercise the said office for and during 
the residue of the said year, taking first a corporal oath, as is 
aforesaid, for the due execution thereof ; and this to be done 
from time to time so often as the case shall so require : And 
also, our will and pleasure is, and by these presents, for us, 
our heirs and successors, WE do grant unto the said Governor 
and Company, that when and as often as it shall happen any 
person or persons of the Committee of the said Company for 
the time being, at any time within one year next after that 
they or any of them shall be nominated, elected and sworn to 
the office of Committee of the said Company as is aforesaid, 
to die or to be removed from the said office, which Committees 
not demeaning themselves well in their said office, we will to 
be removable at the pleasure of the said Governor and Com- 
pany, or the greater part of them, whereof the Governor of 
the said Company for the time being or his Deputy to be one, 
that then and so often, it shall and may be lawful to and for 
the said Governor, and the rest of the Company for the time 
being, or the greater part of them, whereof the Governor for 
the time being or his Deputy to be one, within convenient 
time after the death or removing of any of the said Commit- 
tee, to assemble themselves in such convenient place as is or 
shall be usual and accustomed for the election of the Go- 
vernor of the said Company, or where else the Governor of 
the said Company for the time being or his Deputy shall ap- 
point : And that the said Governor and Company, or the 
greater part of them, whereof the Governor for the time being 
or his Deputy to be one, being then and there present, shall 
and may, then and there, before their departure from the said 
place, elect and nominate one or more of the said Company to 
be of the Committee of the said Company in the place and stead 
of him or them that so died, or were or was so removed, 
which person or persons so nominated and elected to the 



APPENDIX. 155 

office of Committee of the said Company, shall have and exer- 
cise the said office for and during the residue of the said year, 
taking first a corporal oath, as is aforesaid, for the due execu- 
tion thereof, and this to be done from time to time, so often as 
the case shall require : And to the end the said Governor and 
Company of Adventurers of England trading into Hudson's 
Bay may be encouraged to undertake and effectually to prose- 
cute the said design, of our more especial grace, certain 
knowledge and mere motion, we have given, granted and 
confirmed, and by these presents, for us, our heirs and suc- 
cessors, do give, grant and confirm, unto the said Governor 
and Company, and their successors, the sole trade and com- 
merce of all those seas, straits, bays, rivers, lakes, creeks and 
sounds, in whatsoever latitude they shall be, that lie within 
the entrance of the straits, commonly called Hudson's Straits, 
together with all the lands and territories upon the countries, 
coasts, and confines of the seas, bays, lakes, rivers, creeks and 
sounds aforesaid, that are not already actually possessed by or 
granted to any of our subjects, or possessed by the subjects 
of any other Christian Prince or State, with the fishing of all 
sorts of fish, whales, sturgeons and all other royal fishes in 
the seas, bays, inlets and rivers within the premises, and the 
fish therein taken, together with the royalty of the sea upon 
the coasts within the limits aforesaid, and all mines royai, as 
well discovered as not discovered, of gold, silver, gems and 
precious stones, to be found or discovered within the terri- 
tories, limits and places aforesaid, and that the said land be 
from henceforth reckoned and reputed as one of our planta- 
tions or colonies in America, called " Rupert's Land" : And 
further we do by these presents, for us, our heirs and suc- 
cessors, make, create, and constitute the said Grovernor and 
Company for the time being, and their successors, the true 
and absolute lords and proprietors of the same territory, 
limits and places aforesaid, and of all other the premises. 
saving always the faith, allegiance and sovereign dominion 
due to us, our heirs and successors, for the same to have, 



156 APPENDIX. 

HOLD, possess and enjoy the said territory, limits and places, 
and all and singular other the premises hereby granted as 
aforesaid, with their and every of their rights, members, ju- 
risdictions, prerogatives, royalties and appurtenances whatso- 
ever, to them the said Grovernor and Company, and their suc- 
cessors for ever, to be holden of us, our heirs and succes- 
sors, as of our manor of East G-reenwich, in our county of 
Kent, in free and common soccage, and not in capite or by 
Knight's service ; yielding and paying yearly to us, our 
heirs and successors, for the same, two elks and two black 
beavers, whensoever and as often as we, our heirs imd succes- 
sors, shall happen to enter into the said countries, territories 
and regions hereby granted : And further, our will and 
pleasure is, and by these presents, for us, our heirs and suc- 
cessorSj we do grant unto the said Grovernor and Company, 
and to their successors, that it shall and may be lawful to and 
for the said Grovernor and Company, and their successors, 
from time to time, to assemble themselves, for or about any 
the matters, causes, affairs or businesses of the said trade, in 
any place or places for the same convenient, within our do- 
minions or elsewhere, and there to hold court for the said 
Company and the affairs thereof ; and that, also, it shall and 
may be lawful to and for them, and the greater part of them, 
being so assembled, and that shall then and there be present, 
in any such place or places, whereof the Grovernor or his 
Deputy for the time being to be one, to make, ordain and con- 
stitute such and so many reasonable laws, constitutions, 
orders and ordinances as to them, or the greater part of them, 
being then and there present, shall seem necessary and con- 
venient for the good government of the said Company, and 
of all governors of colonies, forts and plantations, factors, 
masters, mariners and other officers employed or to be em- 
ployed in any of the territories and lands aforesaid, and in 
any of their voyages ; and for the better advancement and 
continuance of the said trade or traffic and plantations, and 
the same laws, constitutions, orders and ordinances so made, 



APPENDIX. 157 

to put in, use and execute accordingly, and at their pleasure 
to revoke and alter the same or any of them, as the occasion 
shall require : And that the said Governor and Company, so 
often as they shall make, ordain or establish any such laws, 
constitutions, orders and ordinances, in such form as afore- 
said, shall and may lawfully impose, ordain, limit and provide 
such pains, penalties and punishments upon all offenders, 
contrary to such laws, constitutions, orders and ordinances, or 
any of them, as to the said Governor and Company for the 
time being, or the greater part of them, then and there being 
present, the said Governor or his Deputy being always one, 
shall seem necessary, requisite or convenient for the observa- 
tion of the same laws, constitutions, orders and ordinances ; 
and the same fines and amerciaments shall and may, by their 
officers and servants from time to time to be appointed for 
that purpose, levy, take and have, to the use of the said Go- 
vernor and Company, and their successors, without the im- 
pediment of us, our heirs or successors, or of any the officers 
or ministers of us, our heirs or successors, and without any 
account therefore to us, our heirs or successors, to be made : 
All and singular which laws, constitutions, orders, and ordi- 
nances, so as aforesaid to be made, WE will to be duly ob- 
served and kept under the pains and penalties therein to be 
contained ; so always as the said laws, constitutions, orders 
and ordinances, fines and amerciaments, be reasonable and 
not contrary or repugnant, but as near as may be agreeable to 
the laws, statutes or customs of this our realm ; And fur- 
thermore, of our ample and abundant grace, certain know- 
ledge and mere motion, w E have granted, and by these pre- 
sents, for us, our heirs and successors, do grant unto the said 
Governor and Company, and their successors, that they and 
their successors, and their factors, servants and agents, for 
them and on their behalf, and not otherwise, shall for ever 
hereafter have, use and enjoy, not only the whole, entire and 
only trade and traffic, and the whole, entire and only liberty, 
use and privilege of trading and trafficking to and from the 



158 APPENDIX. 

territory, limits and places aforesaid ; but also trie whole and 
entire trade and traffic to and from all havens, bays, creeks, 
rivers, lakes and seas, into which they shall find entrance or 
passage by water or land out of the territories, limits or 
places aforesaid ; and to and with all the natives and people 
inhabiting, or which shall inhabit within the territories, limits 
and places aforesaid ; and to and with all other nations inhabi- 
ting any the coasts adjacent to the said territories, limits and 
places which are not already possessed as aforesaid, or 
whereof the sole liberty or privilege of trade and traffic is 
not granted to any other of our subjects : And we, of our 
further royal favour, and of our more especial grace, certain 
knowledge and mere motion, have granted, and by these 
presents, for us, our heirs and successors, DO grant to the said 
Governor and Company, and to their successors, that neither 
the said territories, limits and places hereby granted as afore- 
said, nor any part thereof, nor the islands, havens, ports, cities, 
towns, or places thereof or therein contained, shall be visited, 
frequented or haunted by any of the subjects of us, our heirs 
or successors, contrary to the true meaning of these presents, 
and by virtue of our prerogative royal, which we will not 
have in that behalf argued or brought into question : We 
STKAITLY charge, command and prohibit for us, our heirs and 
successors, all the subjects of us, our heirs and successors, of 
what degree or quality soever they be, that none of them, di- 
rectly or indirectly do visit, haunt, frequent, or trade, traffic 
or adventure, by way of merchandize, into or from any of the 
said territories, limits or places hereby granted, or any or 
either of them, other than the said Governor and Company, 
and such particular persons as now be or hereafter shall be 
of that Company, their agents, factors and assigns, unless it 
be by the license and agreement of the said Governor and 
Company in writing first had and obtained, under their com- 
mon seal, to be granted, upon pain that every such person or 
persons that shall trade or traffic into or from any of the coun- 
tries, territories or limits aforesaid, other than the said Go- 



APPENDIX. 159 

vernor and Company, and their successors, shall incur our 
indignation, and the forfeiture and the loss of the goods, mer- 
chandizes and other things whatsoever, which so shall be 
brought into this realm of England, or any the dominions of 
the same, contrary to our said prohibition, or the purport or 
true meaning of these presents, for which the said Governor 
and Company shall find, take and seize in other places out of 
our dominion, where the said Company, their agents, factors 
or ministers shall trade, traffic or inhabit by virtue of these 
our letters patent, as also the ship and ships, with the furni- 
ture thereof, wherein such goods, merchandizes and other 
things shall be brought and found ; the one-half of all the 
said forfeitures to be to us, our heirs and successors, and the 
other half thereof we do by these presents clearly and 
wholly, for us, our heirs and successors, give and grant unto 
the said Governor and Company, and their successors : And 
further, all and every the said offenders, for their said con- 
tempt, to suffer such other punishment as to us, our heirs and 
successors, for so high a contempt, shall seem meet and con- 
venient, and not to be in any wise delivered until they and 
every of them shall become bound unto the said Governor 
for the time being in the sum of One thousand pounds at the 
least, at no time then after to trade or traffic into any of the 
said places, seas, straits, bays, ports, havens or territories 
aforesaid, contrary to our express commandment in that 
behalf set down and published : And further, of our more 
especial grace, we have condescended and granted, and by 
these presents, for us, our heirs and successors, do grant 
unto the said Governor and Company, and their successors, 
that we, our heirs and successors, will not grant liberty, 
license or power to any person or persons whatsoever, con- 
trary to the tenour of these our letters patent, to trade, traffic 
or inhabit, unto or upon any the territories, limits or places 
afore specified, contrary to the true meaning of these presents, 
without the consent of the said Governor and Company, or 
the most part of them : And, of our more abundant grace 



160 APPENDIX. 

and favour to the said Governor and Company, we do hereby 
declare our will and pleasure to be, that if it shall so happen 
that any of the persons free or to be free of the said Company 
of Adventurers of England trading into Hudson's Bay, who 
shall, before the going forth of any ship or ships appointed 
for a voyage or otherwise, promise or agree, by writing 
under his or their hands, to adventure any sum or sums of 
money towards the furnishing any provision, or maintenance 
of any voyage or voyages, set forth, or to be set forth, or in- 
tended or meant to be set forth, by the said Governor and 
Company, or the more part of them present at any public as- 
sembly, commonly called their General Court, shall not 
within the space of twenty days next after warning given to 
him or them by the said Governor or Company, or their 
known officer or minister, bring in and deliver to the 
Treasurer or Treasurers appointed for the Company, such 
sums of money as shall have been expressed and set down in 
writing by the said person or persons, subscribed with the 
name of said Adventurer or Adventurers, that then and at all 
times after it shall and may be lawful to and for the said Go- 
vernor and Company, or the more part of them present, 
whereof the said Governor or his Deputy to be one, at any of 
their General Courts or General Assemblies, to remove and 
disfranchise him or them, and every such person and persons 
at their wills and pleasures, and he or they so removed and 
disfranchised, not to be permitted to trade into the countries, 
territories and limits aforesaid, or any part thereof, nor to 
have any adventure or stock going or remaining with or 
amongst the said Company, without the special license of the 
said Governor and Company, or the more part of them pre- 
sent at any General Court, first had and obtained in that be- 
half, any thing before in these presents to the contrary thereof 
in anywise notwithstanding : And our will and pleasure 
is, and hereby we do also ordain, that it shall and may be 
lawful to and for the said Governor and Company, or the 
greater part of them, whereof the Governor for the time be- 



APPENDIX. 161 

ino- or his Deputy to be one, to admit into and to be of the 
said Company all such servants or factors, of or for the said 
Company, and all such others as to them or the most part of 
them present, at any court held for the said Company, the 
Governor or his Deputy being one, shall be thought fit and 
agreeable with the orders and ordinances made and to be 
made for the government of the said Company : And fur- 
ther, our will and pleasure is, and by these presents for us 
our heirs and successors, WE DO grant unto the said Governor 
and Company, and to their successors, that it shall and may 
be lawful in all elections and by-laws to be made by the 
General Court of the Adventurers of the said Company, that 
every person shall have a number of votes according to his 
stock, that is to say, for every hundred pounds by him sub- 
scribed or brought into the present stock, one vote, and that 
any of those that have subscribed less than One hundred 
pounds, may join their respective sums to make up One hun- 
dred pounds, and have one vote jointly for the same, and not 
otherwise : And further, of our special grace, certain know- 
ledge, and mere motion, WE do, for us, our heirs and succes- 
sors, grant to and with the said Governor and Company of 
Adventurers of England trading into Hudson's Bay, that all 
lands, islands, territories, plantations, forts, fortifications, facto- 
ries or colonies, where the said Company's factories and trade 
are or shall be, within any the ports or places afore limited, 
shall be immediately and from henceforth under the power 
and command of the said Governor and Company, their suc- 
cessors and assigns ; saving the faith and allegiance due to be 
performed to us, our heirs and successors, as aforesaid ; and 
that the said Governor and Company shall have liberty, full 
power and authority to appoint and establish Governors and 
all other officers to govern them, and that the Governor and 
his Council of the several and respective places where the 
said Company shall have plantations, forts, factories, colonies 
or places of trade within any the countries, lands or territo- 
ries hereby granted, may have power to judge all persons be- 
M 



162 APPENDIX. 

longing to the»said Governor and Company, or that shall live 
under them, in all causes, whether civil or criminal, according 
to the laws of this kingdom, and to execute justice accord- 
ingly ; and in case any crime or misdemeanour shall be com- 
mitted in any of the said Company's plantations, forts, facto- 
ries or places of trade within the limits aforesaid, where judi- 
cature cannot be executed for want of a Governor and Coun- 
cil there, then in such case it shall and may be lawful for the 
chief Factor of that place and his Council to transmit the 
party, together with the offence, to such other plantation, fac- 
tory or fort where there shall be a Governor and Council, 
where justice may be executed, or into this kingdom of Eng- 
land, as shall be thought most convenient, there to receive 
such punishment as the nature of his offence shall deserve : 
And moreovee, our will and pleasure is, and by these pre- 
sents, for us, our heirs and successors we do give and grant 
unto the said Governor and Company, and their successors^ 
free liberty and license, in case they conceive it necessary, to 
send either ships of war, men or ammunition unto any their 
plantations, forts, factories or places of trade aforesaid, for the 
security and defence of the same, and to choose commanders 
and officers over them, and to give them power and authority, 
by commission under their common seal, or otherwise, to con- 
tinue or make peace or war with any prince or people whatso- 
ever, that are not Christians, in any places where the said 
Company shall have any plantations, forts or factories, or ad- 
jacent thereunto, as shall be most for the advantage and bene- 
fit of the said Governor and Company, and of their trade : 
and also to right and recompense themselves upon the goods, 
estates or people of those parts, by whom the said Governor 
and Company shall sustain any injury, loss or damage, or 
upon any other people whatsoever, that shall in any way, con- 
trary to the intent of these presents, interrupt, wrong or in- 
jure them in their said trade, within the said places, territories 
and limits granted by this Charter : And that it shall and may 
be lawful to and for the said Governor and Company, and 



APPENDIX. 163 

their successors, from time to time, and at all times from 
henceforth, to erect and build such castles, fortifications, forts 
garrisons, colonies or plantations, towns or villages, in any 
parts or places within the limits and bounds granted before 
in these presents unto the said Governor and Company, a& 
they in their discretion shall think fit and requisite, and for 
the supply of such as shall be needful and convenient, to* 
keep and be in the same, to send out of this kingdom, to the 
said castles, forts, fortifications, garrisons, colonies, plantations,, 
towns or villages, all kinds of clothing, provision of victuals* 
ammunition and implements necessary for such purpose, pay- 
ing the duties and customs for the same, as also to transport 
and carry over such number of men being willing thereunto r 
or not prohibited, as they shall think fit, and also to govern 
them in such legal and reasonable manner as the said Go- 
vernor and Company shall think best, and to inflict punish- 
ment for misdemeanors, or impose such fines upon them for 
breach of their orders, as in these presents are formerly ex- 
pressed : And further, our will and pleasure is, and by 
these presents, for us, our heirs and successors, WE do grant 
unto the said Governor and Company, and to their successors,- 
full power and lawful authority to seize upon the persons of 
all such English, or any other our subjects which shall sail 
into Hudson's Bay, or inhabit in any of the countries, islands, 
or territories hereby granted to the said Governor and Com- 
pany, without their leave and license, and in that behalf first 
had and obtained, or that shall , contemn or disobey their 
orders, and send them to England and that all and every per- 
son or persons, being our subjects, anyways employed by the 
said Governor and Company, within any the parts, places", 
and limits aforesaid, shall be liable unto and suffer such pun- 
ishment for any offences by them committed in the parts 
aforesaid, as the President and Council for the said Governor 
and Company there shall think fit, and the merit of the offence- 
shall require, as aforesaid ; and in case any person or persons- 
being convicted and sentenced by the President and Council 
of the said Governor and Company, in the countries, lands or 



164 APPENDIX. 

limits aforesaid, their factors or agents there, for any offence 
by them done, shall appeal from the same, that then and in 
such case it shall and may be lawful to and for the said Presi- 
dent and Council, factors or agents, to seize upon him or 
them, and to carry him or them home prisoners into England, 
to the said Governor and Company, there to receive such con- 
dign punishment as his cause shall require, and the law of 
this nation allow of ; and for the better discovery of abuses 
and injuries to be done unto the said Governor and Company, 
or their successors, by any servant by them to be employed 
in the said voyages and plantations, it shall and may be law- 
ful to and for the said Governor and Company, and their re- 
spective President, Chief Agent or Governor in the parts 
aforesaid, to examine upon oath all factors, masters, pursers, 
supercargoes, commanders of castles, forts, fortifications, plant- 
ations or colonies, or other persons, touching or concerning 
any matter or thing in which by law or usage an oath may 
be administered, so as the said oath, and the matter therein 
contained, be not repugnant, but agreeable to the laws of this 
realm : And we do hereby straitly charge and command all 
and singular our Admirals, Vice-Admirals, Justices, Mayors, 
Sheriffs, Constables, Bailiffs, and all and singular other our 
officers, ministers, liege men and subjects whatsoever to be 
aiding, favouring, helping and assisting to the said Governor 
and Company, and to their successors, and to their deputies, 
officers, factors, servants, assigns and ministers, and every of 
them, in executing and enjoying the premises, as well on 
land as on sea, from time to time, when any of you shall 
thereunto be required ; any statute, act, ordinance, proviso, 
proclamation or restraint heretofore had, made, set forth, or- 
dained or provided, or any other matter, cause or thing what- 
soever to the contrary in anywise notwithstanding. In 
witness whereof we have caused these our Letters to be 
made Patent. Witness ourself at Westminster, the second 
day of May, in the two-and-twentieth year of our reign. 

By Writ of Privy Seal. 

Pigott. 



APPENDIX. 165 

APPENDIX B. 

EXTRACTS FKOM BENJAMIN FEANKLIN'S LETTERS TO HIS 

SON. — See Spark's "Franklin" vol. 4. 

May 10, 1766. — I like the project of a colony in Illinois 
country, and will forward it to my utmost here. 

Aug. 25, 1766. — I can now only add that I shall endeavor to 
accomplish all that you and your friends desire relating to the 
settlement westward. 

Sept. 12, 1766. — I have just received Sir "William's open 
letter to Secretary Conway, recommending your plan for a 
colony in the Illinois, which I am glad of. I have closed and 
sent it to him. He is not now in that Department ; but it will 
of course go to Lord Shelburne, whose good opinion of it I 
have reason to hope for — and I think Mr. Conway was 
rather against distant Posts and settlements in America. We 
have, however, suffered a loss in Lord Dartmouth, who I 
know was inclined to grants there in favour of the soldiery, 
and Lord Hillsborough is said to be terribly afraid of dis- 
peopling Ireland. Gren. Lyman has been long here soliciting 
such a grant, and will readily join the interest he has made 
with ours ; and I should wish for a body of Connecticut set- 
tlers, rather than all from our frontiers. I purpose waiting 
on Lord Shelburne on Tuesday, and hope to be able to send 
you his sentiments by Falconer, who is to sail about the 20th. 
A good deal, I imagine, will depend on the account when it 
arrives of Mr. Croghan's negotiation in that country. This is 
an affair I shall seriously set about ; but there are such con- 
tinual changes here that it is very discouraging to all applica- 
tions to be made to the Ministry. I thought the last set to be 
well established ; but they are broken and gone. The pre- 
sent set are hardly thought to stand very firm, and God only 
knows whom we are to have next. The plan is, I think, well 
drawn, and, I imagine, Sir William's approbation will go a 
great way in recommending it, as he is much relied on in all 



166 APPENDIX. 

affairs that may have any relation to the Indians. Lord 
Adam Gordon is not in town, but I shall take the first oppor- 
tunity of conferring with him. I thank the Company for 
their willingness to take me in, and one or two others that I 
may nominate. I have not yet concluded whom to propose it 
to ; but I suppose our friend Sargent should be one. I wish 
you had allowed me to name more, as there will be in the 
proposed country, by reckoning, near sixty-three millions of 
acres, and therefore enough to content a great number of 
reasonable people ; and by numbers we might increase the 
weight of interest here. But perhaps we shall do without. 

Sept. 27, 1766. — I have mentioned the Illinois affair to Lord 
Shelburne. His lordship has read your plan for establishing a 
colony there, recommended by Sir William Johnson, and said 
it appeared to him a reasonable scheme ; but he found it did 
not quite rate with the sentiments of people here ; that their 
objections to it were, the distance, which would make it of 
little use to this country, as the expense on the carriage of 
goods would oblige the people to manufacture for themselves ; 
that it would for the same reason be difficult both to defend it 
and to govern it ; that it might lay the foundation of a Power 
in the heart of America, which in time might be troublesome 
to the other colonies, and prejudicial to our government over 
them ; and the people were wanted both here and in the al- 
ready settled colonies, so that none could be spared for a new 
colony. These arguments, he said, did not appear of much 
weight, and I endeavoured by others to invalidate them en- 
tirely. 'But his lordship did not declare whether he would or 
would not promote the undertaking, and we are to talk fur- 
ther upon it. 

I communicated to him two letters of Mr. Orogan's, with 
his journal, and one or two of yours on the subject, which he 
said he would read and consider ; and I left with him one of 
Evans' maps of the middle colonies, in the small scale part of 
which I had marked with a wash of red ink the whole coun- 
try included in your boundaries- His lordship remarked 



APPENDIX. 167 

that this would coincide with G-en. Lyman's project, and that 
they might be united. 

Sept. 30, 1766. — I have just had a visit from G-en. Lyman, 
and a good deal of conversation on the Illinois scheme. He 
tells me that Mr. Morgan, who is Under-Secretary of the 
Southern Department, is much pleased with it, and we are to 
go together to talk to him concerning it. • 

Oct. 11, 1766. — I was again with Lord Shelburne a few 
days since, and said a good deal to him on the affair of the 
Illinois settlement. He was pleased to say that he really ap- 
proved of it ; but intimated that every new proposed expense 
for America would meet with great difficulty here, the 
Treasury being alarmed and astonished at the growing 
charges there, and the heavy accounts and drafts continually 
brought in from thence ; that Major Farmer, for instance, 
had lately drawn for no less than thirty thousand pounds, 
extraordinary charges, on his going to take possession of the 
Illinois, and that the Superintendents, particularly the South- 
ern one, began also to draw very largely. He spoke, however, 
handsomely of Sir William on many accounts. 

Nov. 8, 1776. — Mr. Jackson has now come to town. The 
Ministry have asked his opinion and advice on your plan of a 
colony in the Illinois, and he has just sent me to peruse his 
answer in writing, in which he warmly recommends it, and 
enforces it by strong reasons, which give me great pleasure, 
as it corroborates what I have been saying on the same topic, 
and from him appears less to be suspected of some American 
bias. 

June 13, 1767. — The Illinois affair goes forward but slowly. 
Lord Shelburne told me again last week that he highly ap- 
proved of it, but others were not of his sentiments, particu- 
larly the Board of Trade. Lyman is almost out of patience, 
and now talks of carrying out his settlers without leave. 

Aug.- 28, 1767. — Last week I dined at Lord Shelburne's, 
and had a long conversation with him and Mr. Conway 
(there being no other company) on the subject of reducing 



168 APPENDIX. 

the American expenses. They have it in contemplation ta 
return the management of Indian affairs into the hands of 
the several Provinces on which the nations border, that the 
colonies may bear the charge of treaties and the like, which 
they think will be then managed more frugally, the Treasury 
being tired with the immense drafts of the Superintendents. 

I took the opportunity of urging it as one mode of saving 
expense in supporting the outposts that a settlement should 
be made in the Illinois country, expatiated on the various ad- 
vantages, namely, furnishing provisions cheaper to the garri- 
sons securing the country, retaining the trade, raising a 
strength - there, which on occasion of a future war, might 
easily be poured down the Mississippi upon the lower coun- 
try, and into the Bay of Mexico, to be used against Cuba, the 
French islands, or Mexico itself. I mentioned your plan, its 
being approved of by Sir William Johnson, and the readiness 
and ability of the gentlemen concerned to carry the settle- 
ment into execution with very little expense to Government. 
The Secretaries appeared finally to be fully convinced, and 
there remained no obstacle but the Board of Trade, which 
was to be brought over privately before the matter was re- 
ferred to them officially. In case of laying aside the Super- 
intendents, a provision was thought of for Sir William John- 
son. He will be made Governor of the new colony. 

Oct. 9, 1767. — I returned last night from Paris, and just now 
hear that the Illinois settlement is approved of in the Cabinet 
Council so far as to be referred to the Board of Trade for 
their opinion, who are to consider it next week. 

Nov. 13, 1767. — Since my return, the affair of the Illinois 
settlement has been renewed. The King in Council referred 
the proposal to the Board of Trade, who called for the opinion 
of the merchants on two points, namely whether the settle- 
ment of colonies in the Illinois country and at Detroit might 
not contribute to promote and extend the commerce of G-reat 
Britain ; and whether the regulation of the Indian trade 
might not be best left to the several colonies that carry on 



APPENDIX. 169 

such trade — both which questions they considered at a meet- 
ing, where Mr. Jackson and I were present, and answered in 
the affirmative unanimously, delivering their report accord- 
ingly to the Board. 

Nov. 25, 1767. — As soon as I received Mr. G-alloway's, Mr. 
S. Wharton's, and Mr. Crogan's letters on the subject of the 
(Indian) boundary, T communicated them to Lord Shelburne. 
He invited me next day to dine with him. Lord Clare was 
to have been there, but did not come. There was nobody 
but Mr. Maclean. My lord knew nothing of the boundaries 
having been agreed on by Sir William ; had sent the letters 
to the Board of Trade, directing search to be made there for 
Sir William's letters ; and ordered Mr. Maclean to search the 
Secretary's office, who found nothing. We had much dis- 
course about it, and I pressed the importance of despatching 
orders immediately to Sir William to complete the affair. His 
lordship asked who was to make the purchase, that is, who 
should be at the expense. I said that if the line included 
any lands within the grants of the charter colonies, they 
should pay the purchase-money of such proportion. If any 
within the proprietary grants, they should pay their propor^ 
tion. But what was, within Eoyal governments, where the 
Ring granted the lands, the Crown should pay for that pro- 
portion. His lordship was pleased to say he thought this 
reasonable. He finally desired me to go to Lord Clare as 
from him, and urge the business there, which I undertook to 

(1A t ^ ^ 

I waited next morning on Lord Clare, and pressed the mat- 
ter of the boundary closely upon him. * * * He agreed 
upon settling it, but thought there would be some difficulty 
about who should pay the purchase-money ; for that this 
country was already so loaded, it would bear no more. We 
then talked of the new colonies. I found he was inclined to 
think one near the mouth of the Ohio might be of use in se- 
curing the country, but did not much approve that at Detroit. 
And, as to the trade he imagined it would be of little conse- 



170 APPENDIX. 

quence, if we had it all, but supposed our traders would sell 
the peltry chiefly to the French and Spaniards at New 
Orleans, as he had heard they had hitherto done. 

March 13, 1768. — The purpose of settling the new colonies 
seems at present to be dropped, the change of American ad- 
ministration not appearing favourable to it. There seems 
rather to be an inclination to abandon the posts in the back 
country, as more expensive than useful. But counsels are so 
continually fluctuating here that nothing can be depended on. 
The new Secretary, Lord H., is, I find, of opinion that the 
troops should be placed, the chief part of them in Canada and 
Florida. * * * 



On the Colonization of the Illinois Country. — Extract. 
[Sir William Johnson to the Lords of Trade and Plantations.] 

Johnson's Hall, Jan. 31, 1776. 

My Lords, — * * * I have received the agreeable 
news of our being in actual possession of the Illinois, the 
Indians, in consequence of their engagements to Mr. Crogam 
having given no obstruction to Captain, Stirling or his party, 
who arrived at Fort Chartres in October last, and were well 
received. 

As the possession of this fine country has been earnestly de- 
sired and often in vain attempted since the reduction of 
Canada, and now proceeds from the late negociations of my 
Deputy with the Indians in that quarter, it may not be amiss 
to offer my thoughts on the best manner for possessing so 
valuable an acquisition, and render it of real use to the 
Crown. It will be needless to enlarge upon the natural ad- 
vantages of soil and situation which this country peculiarly 
enjoys, these being matters pretty well known ; but to avail 
ourselves of these advantages, it is highly necessary that we 
should do all in our power to keep the Indians contented, 
easy and reconciled to our manners and government, without 



APPENDIX. 171 

which we can neither keep up the communication, or retain 
it for any time, and the difficulties and obstructions which 
have hitherto prevented our possessing it, by way of the 
Mississippi, are convincing proof of this. Neither is it in our 
power, with any force to be spared for that service, to ascend 
the river or cross the country by land to that settlement, if 
the Indians are at all disposed to obstruct their progress.^ 
The settlements at the Illinois extend for many miles above 
the Kaskaski river along the Mississippi ; the land is ex- 
tremely fine, and capable of raising anything. Some of the 
present inhabitants may possibly incline to go home, and our 
traders will, I dare say, choose to purchase their rights ; this 
may be a foundation for a valuable colony in that country, 
which, once established, would prove very beneficial to Great 
Britain, as well as a great check to the large cessions obtained 
of the natives. But to effect this, and every other purpose, 
their jealousies and dislike must be conquered, and they must 
be convinced by a series of good management and occasional 
generosity that their suspicions are groundless. — N. Y. Hist. 
Doc, vol. 8. 



APPENDIX C. 

so much of the debate in the house of commons on the 
Quebec Bill as Relates to the Boundaries. 

Mr. T. Townshend, jun. — Although I bow very low to all great 
authorities, I must venture to mention one thing, that when 
I was calling for regulations for Canada, little did I think, 
that I was calling for regulations for a country much larger 
than Canada, a country " extending," in the words of the Bill. 
" southward to the banks of the River Ohio, westward to the 
banks of the Mississippi, and northward to the southern 
boundary of the territory granted to the Merchants' Adven- 

* The expeditions of Lord Dunmore and Colonel Boquet would seem to warrant 
different conclusion. 



172 APPENDIX. 

turers of England trading to Hudson s Bay." I say, Sir, that 
when I was calling for regulations for Canada, little did I 
think that I was calling for an arrangement which, I will 
venture to say, is oppressive to the English subject, and dis- 
agreeable and hateful to the Canadian. * * * I know 
there prevails an opinion that the best thing you can do with 
this country is to make it a French colony, to keep the 
English out of it as much as possible, that they may not mix 
with the Canadians. * * * Now, for what purpose are 
they (the English settlers) to be placed under French laws, 
unless it is meant to be laid as a foundation that, for the 
future, French laws are to be the laws of America ? If this 
is to be the case, tSir, that may be a good reason for extending 
French law to the whole of Illinois, and to all that is inter- 
mediate between Illinois and Canada. You have given up to 
Canada almost all that country which was the subject of dispute, 
and for which we went to war. We went to war calling it the 
Province of Virginia. You tell the French it was only a pre- 
text for going to war ; that you knew then, you know now, 
that it was a part of the Province of Canada. * * * I 
should wish to know why Canada may not be reduced to 
some less limits ; why not the same limits England and 
France have ever given it ; why not within some bounds, 
a little less than that which is given to it here ?- 

Lord North. — * * * The first thing objected to by 
the honourable gentleman is the very great extent of terri- 
tory given to the Province. Why, he asks, is it so extensive ? 
There are added undoubtedly to it two countries which were 
not in the original limits of Canada, as settled in the procla- 
mation of 1763 : one, the Labrador coast, the other, the coun- 
try westward of the Ohio and Mississippi, and a few scattered 
posts to the west. Sir, the addition of Labrador coast has 
been made in consequence of information received from 
those best acquainted with Canada and the fishery upon that 
coast, who deem it absolutely necessary, for the preservation 
of that fishery, that the Labrador coast should no longer be 



APPENDIX. 173 

considered as a part of the government of Newfoundland 
but be annexed to that country. With respect to the other 
additions, these questions very fairly occur. It is well known 
that settlers are in the habit of going to the interior parts from 
time to time. Now, however undesirable, it is open to Parlia- 
ment to consider whether it is fit there should be no government in 
the country, or, on the contrary, separate and distinct govern- 
ments ; or whether the scattered posts should be annexed to 
Canada. The House of Lords have thought proper to annex 
them to Canada ; but when we consider that there must be 
some government, and that it is the desire of all those who 
trade from Canada to those countries, that there should be 
some government, my opinion is that if gentlemen will weigh 
the inconveniences of separate governments, they will think 
the least inconvenient method is to annex those spots, though few 
in population, great in extent of territory, rather than to leave 
them without government at all, or make them separate ones' 
Sir, the annexation likewise is the result of the desire of the 
Canadians and of those who trade to those settlements, who 
think they cannot trade with safety as long as they remain 
separate. 

Mr. T. Townsend, jun. — * * * Near the Illinois and 
Fort du Cane, I am informed there are at this time upwards 
of five-and-twenty thousand British settlers. 

Mr. Dunning. — * * * The first object of this Bill is 
to make out that to be Canada, which it was the struggle of 
this country to say was not Canada. Now, Sir, if this Pro- 
vince should ever be given back to its old masters — and I am 
not without an inclination to think that the best way would be to 
give it back to its old masters — if it should ever become right to 
give back Canada, with what consistency can its future nego- 
ciator say to Franco, We will give you back Canada ; not that 
Canada which you asserted to be Canada, but that stated in 
the proclamation, having discovered that we were mistaken 
in the extent of it, which error has been corrected by the 
highest authority in this country ? Then, suppose Canada 



174 APPENDIX. 

thus extended should be given back to France, the English 
settled there will then have a line of frontier to an extent un- 
defined by this Bill ; for this country is bounded by the Ohio 
on the west — Grod knows where ! I wish Grod alone may not 
know where. I wish any gentleman would tell us where. 
I observe in this description of frontier a studied ambiguity 
of phrase. I cannot tell what it means ; but I conjecture 
that it means something bad. The Ohio is stated as a bound- 
ary confirmed by the Crown ; but what act, what confirma- 
tion by the Crown has passed upon this subject ? I know of 
no such act, of no such confirmation. I know, by the terms 
of the Charter, the colonists suppose, and I think they are 
well grounded in the supposition, that they are entitled to 
settle back as far as they please to the east (? West) to 
the sea, their natural boundary. They did not like a dif- 
ferent barrier. I know some assert this right, and others 
content themselves with a less extensive claim. Whether 
so extensive a claim has been allowed, I know not ; but I 
do understand, in point of fact, that there has been long 
subsisting a dispute about the western frontier, which was 
never discussed, still less decided ; and when this Bill shall 
become a law, those colonists will then learn that this Parlia- 
ment, at this hour, have decided this dispute without know- 
ing what the dispute was, and without hearing the parties. 
Looking, Sir, at the map, I see the Eiver Ohio takes its rise 
in a part of Pennsylvania, and runs through the Province of 
Virginia ; that, supposing myself walking down the river, all 
the country to the right, which is at this moment a part of 
the Province of Yirginia, has been lopped off from this part, 
and has become instead a part of Canada ; for, we tell them, 
the instant they pass that river, which by the terms of the 
Charter they may pass, that matter is now for ever at rest ; 
the moment, say we, you get beyond that river, you are in 
the condition in which this Bill professes to put Canada — the 
Indian finds himself out of the protection of that law under 
which he was bred. Sir, do we treat the proprietors of 



APPENDIX. 175 

Indiana well ? Some of them are resident in this country 
I apprehend, at this very hour they are unapprised of this 
Bill to stop them. To decide upon questions without exactly 
knowing whether such questions are existing, is an obvious 
injustice. ^ ^ # I should be glad to learn what is the 
good intended to be effected by this extent of territory ? The 
noble lord says it is to comprise a few straggling posts under 
some form of government. If I should admit the necessity 
of so comprising a few straggling posts, does it follow that 
this is a form of government fit to be established ? Does it 
follow from any local reasons why Canada should be so ex- 
tensive, or that the English, settlers should be likewise in- 
volved ? What objections are there to making more settle- 
ments ? Whatever they are, they will be found trivial, com- 
pared to the consequence of involving this whole region in 
this form of government. ^ ^ # 

Attorney- General Thurlow. — # ^ # The honourable 
gentlemen complain that the bounds of Canada extend a 
great way beyond what they were acknowledged to do 
formerly, and that it was peculiarly bad policy, as far as 
it regarded the French, to give the limits so great an ex- 
tension. Now, the House will remember that the whole 
of Canada, as we allowed it to extend, was not included 
in the proclamation ; that the bounds were not coequal 
with it as it stood then, and that it is not included in the 
present Act of Parliament, if that were material. But I 
will not, Sir, consider it as the Province that formerly belonged 
to France, nor cls called by the same name ; it is a new 
scheme of a constitution adapted for a part of the country, 
not that part only which was under French government, but 
embracing many other parts of great extent which were for- 
merly not under French government, but were certainly oc- 
cupied in different parts by French settlers, and French 
settlers only. The honorable gentlemen are mistaken if they 
suppose that the bounds described embrace in point of fact 
any English settlement. I know of no English settlement 



176 APPENDIX. 

embraced by it. I have heard a great deal of the commence- 
ment of English settlements ; but, as far as I have read, they 
all lie upon the other side of the Ohio.* I know at the same 
time, that there have been for nearly a century past, settlements in 
different parts of all this tract, especially in the southern parts of 
it, and in the eastern (? western), bounded by the Ohio and Missis- 
sippi ; but with regard to that part, there have been different 
tracts of French settlements established. As far as they are 
inhabited by any but Indians, I take those settlements to 
have been altogether French ; so that the objection certainly 
wants foundation. * * * It is undoubtedly true, if you 
read the French history, that the bounds prescribed neither 
are nor ever were the bounds of the Province of Canada, as 
stated by the French ; and therefore the argument is not itself 
a proper one to proceed upon. ^ ^ ^ With regard to the 
more southern part of the country, I do not take it that Vir- 
ginia has ever made a single claim within more than a hun- 
dred miles of the bounds prescribed for the present Province. 
The most extensive claim I ever heard of went to what is 
called The Endless Mountains, just in a nook of the Province 
of Yirginia (? Pennsylvania). I know of none that ever pre- 
tended to exceed that, nor ever heard that some new settle- 
ments which were applied for, between these mountains and 
the Ohio, have ever been looked upon as an invasion of the 
rights of those who have claims upon the Province of Yir- 
ginia. * * * I have always understood, also, that it was 
under that authority, and in conformity with the rule and 
measure of law, that in every instance, through every period 
of English history, the King has given to newly-conquered 
countries their constitution ; subject to be corrected by the 
joint interposition of the King, Lords, and Commons of this 
country ; and that such a constitution might be reformed, by 

* There were at this time no English settlements west of the Ohio river. Franklin, 
in his reply to the Lords of Trade, refers to a settlement of 30,000 on the Ohio ; but it 
was on the other side — and this is probably the one that Mr. Townshend and others 
refer to, but they had forgotten the locality. 



APPENDIX. 177 

correcting the ill advice, if any ill advice had been given, 
under which the King had acted, in giving them a constitu- 
tion upon the event and at the moment of the conquest. 

Col. Barre. — * * * The honourable and learned gen- 
tleman was not precise in stating the limits of our colonies. 
He seemed unwilling for the House to think that any one of i 
the colonies, especially Pennsylvania and Virginia, had a right 
to settle beyond the Endless Mountains ;* as if the honorable 
and learned gentleman could be ignorant of the fact that 
many thousands of English subjects are established some 
hundred miles beyond the Endless Mountains, upon the 
very spot which you are now going to make a part of 
this country of Canada. * * * It was, says the noble 
lord, necessary to take in and to annex the scattered Posts in 
the neighbourhood of Detroit and Lake Michigan. If the 
noble lord will be so good as to look at the map, he will find 
Jie could have taken in every one of those Posts, and never 
thrown out any doubt about the shape of Canada ; at the 
same time that all that part between the Lake and the Ohio 
would have been kept out by this Bill — and all the purposes 
of the Bill, except the reference to settling upon the Ohio, 
would have been answered by his taking that boundary. If 
there had been any doubt, what would have removed 
that doubt, would have been looking at the course pur- 
sued between the English and French negociators, when 
the French offered to withdraw from that part of the country 
which they had taken possession of on the south of the Ohio, 
and retire to the north side, making that river the boundary 
of the colony* The English Minister said, " No ; we will not 
submit to those terms. They are not the boundaries; the 
River St. Lawrence and the lakes are our boundary — we will 
agree to no other." Their language now is, the River St. Law- 
rence is the centre, not the frontier ; we will not be deprived 
of our property in the country. 

* For the position of the Endless Mountains, see Pownall's map. They are near 
the northern part of Pennsylvania. 
N 



178 APPENDIX. 

Mr. Serjeant G'ynne. — * * * You are incompetent to 
decide upon the limits of the country, or whether the descrip- 
tion of it in the Bill is most conformable to the claim of the 
French or to our claim before the war ; but I shall take it as 
I find it slated on both sides of the House, namely, that there 
is to be a newly-erected Province, comprehending a great 
part of North America, partly inhabited, partly uninhabited - 
that such parts are to be erected into a Province, in hopes that 
the population will increase, and that all those parts by 
degrees will become peopled. * * * In times past, a 
Minister of the Crown was censured for proposing an arbi- 
trary form of government for the colonies. However objec- 
tionable that proposed form of government may have been, 
we do not find that the powers given to the Governor, on 
that occasion, were so extensive as those vested in him by this 
measure. The principles which prevailed in the days of 
Charles the Second will not, I trust, receive the sanction of 
the legislature of the present day. 

Solicitor- General Wedderbum. — It is one object of this measure 
that these persons {the English) should not settle in Canada. The 
subjects of this country, in Holland, in the Baltic, and in dif- 
ferent parts of the world, where they may go to push their 
commercial views, look upon England as their home ; and it 
should be our care to keep alive in their breasts this attach- 
ment to their native soil. With regard to the other portion of 
the inhabitants of North America, I think the consideration 
alters ; if the geographical limits are rightly stated, I think 
one great advantage of this extension of territory is this, that 
they will have little temptation to stretch themselves north- 
ward. I would not say, " Cross the Ohio ; you will find the 
Utopia of some great and mighty empire." I would say, 
" This is the border beyond which, for the advantage of the 
whole empire, you shall not extend yourselves." It is a regu- 
lar government ; and that government will have authority to 
make inquiry into the views of native adventurers. As tc 
British subjects within the limits, I believe that there are not 



APPENDIX. 179 

five in the whole country. I think this limitation of the 
boundary will be a better mode than any restriction laid upon 
government. In the grant of lands, we ought to confine the 
inhabitants to keep them, according to the ancient policy of 
the country, along the line of the sea and river. 

Mr. Charles Fox. — * * * It is not right for this coun- 
try to originate and establish a constitution in which there is 
not a spark of semblance of liberty. A learned gentleman 
has said that by this means we should deter our own country- 
men from settling there. Now, Sir, as it is my notion that it 
is the policy of this country to induce Englishmen to mix as 
much as possible with the Canadians, I certainly must come 
to a different conclusion. 

Monday, June 6. 

The House resolved itself into a Committee upon the Bill, 
Sir Charles Whit worth in the Chair. The first clause was 
read, viz. : " And whereas, by the arrangements made by the 
said Royal Proclamation, a very large part of the territory of 
Canada, within which there were several colonies and settle- 
ments of the subjects of France, who claimed to remain 
therein under the faith of the said treaty, was left without 
any provision being made for the administration of civil gov- 
ernment therein, and other parts of the said country, where 
sedentary fisheries had been established and carried on by 
the subjects of France, inhabitants of the said Province of 
Canada, under grants and concessions from the government 
thereof, were annexed to the government of Newfoundland, 
&c, be it enacted that all the said territories, islands, and 
countries heretofore a part of the territory of Canada, in 
North America, extending southward to the banks of the 
River Ohio, westward to the banks of the Mississippi, and 
northward to the southern boundary of the territory granted 
to the Merchants' Adventurers of England trading to Hud- 
son's Bay, and which said territories, islands, and countries 
are not within the limits of some other British colony, as 



180 APPENDIX. 

allowed and confirmed by the Crown, or which have since 
the 10th of February 1763, been made part of the govern- 
ment of Newfoundland, be, and they are hereby, during his 
Majesty's pleasure, annexed to and made part and parcel of 
the Province of Quebec, as created and established by the 
said Eoyal Proclamation of the 7th of October, 1763." 

Lord North. — **•'.* There are great difficulties as to 
the best mode of proceeding. I apprehend the alteration I am 
about to propose will save every right where there is a right. I 
will explain the amendment I intend to make ; if that should 
not give satisfaction, gentlemen will state what it is they pro- 
pose to substitute in its stead. We shall then ascertain how far 
we shall be able to make anything more precise. The question 
is an extremely difficult one. It is usual to have different 
boundaries laid down in different manners. "Where the 
King is master of the country, then they are drawn by his 
Majesty's officers only ; where there has been any grant or char- 
ter, and it has been necessary to draw any boundiry line, then not 
only his Majesty's officers, but commissioners have been appointed, 
and together they draw a line, subject, afterwards, to an appeal to 
the Privy Council — therefore that distinction is made here. It 
is intended, immediately after the passing of this Act, to go on 
with the project of running the boundary line between 
Quebec and New York and Pennsylvania, &c, belonging to 
the Crown. This is made to prevent the Province of Quebec 
from encroaching on the limits of any of those grants where 
no boundary has been settled. I find many gentlemen are 
desirous of having something more precise, if possible. To 
this I have no objection ; but we are so much in the dark as 
to the situation of this country, that it is not possible to do 
anything more safe than saving the rights of the other colo- 
nies, leaving them to be settled on the spot by commissioners. 
Persons possessing local knowledge can act better than we 
can. For that reason I propose to leave out the words " here- 
tofore part of the territory of Canada," and insert '■ extent of 
country," and also leave out the words " said country" and 
insert " territory of Canada." 



APPENDIX. 181 

Governor Johnstone. — * * * My objection to it is, yon 
are going to extend a despotic government over too large a 
surface ; and that you are going to establish a boundary line 
with a pretence of bringing it within the line of justice 
where God and nature are against you. The pretence that is 
held out to induce this House to accede to the measure, is, 
first, that with the former government of Quebec, Canada 
did extend so far, and that as we are about to give the Cana^ 
dians back their old laws, we ought at the same time to give 
them back what has been asserted in this House to have been 
their ancient territory. * * * Now, Sir, as I had the 
honour of being appointed Governor of West Florida, it be- 
came my duty to make myself acquainted with the bounda- 
ries of Louisiana, and I accordingly endeavoured to obtain the 
best information upon that subject. I was surprised, there- 
fore, to hear it given in evidence, not directly, but insinuated, 
that the former Government of Canada extended as far as 
you propose to make it. One of the reasons given by General 
Carleton for this extension of country, was that the inhabi- 
tants of these remote parts might be under the direction of 
the government of Canada. 

Mr. Edmund Burke. — If we had originated this measure 
above stairs, where maps might have been laid upon the 
table, no doubt the whole dispute of this day would have 
been avoided. I shall ask for the attention of the Committee, 
partly that they may understand me ; partly that I may un- 
derstand myself. In the first place, when I heard that this 
Bill was to be brought in on the principle that Parliament 
were to draw a line of circumvalation about our colonies, and 
to establish a siege of arbitrary power, by bringing round 
about Canada the control of other people, different in man- 
ners, language, and laws from those of the inhabitants of this 
colony, I thought of the highest importance that we should 
endeavour to make this boundary as clear as possible. I con- 
ceived it necessary for those who are to be besieged in this 
manner ; and also necessary for the British subject, who 



j 



182 APPENDIX. 

should be restricted, and not be allowed unknowingly to ven- 
ture into the colony and disturb its possessors. I wish these 
limits to be ascertained, and fixed with precision, for the sake 
of both parties. Having this object in my view, I shall first 
consider the line drawn in the proclamation of 1763. It was 
drawn from a point taken in the lake called Nipissim ; that 
lake stands to the north of this point. I entreat the attention 
of the Committee ; for the escape of a word is the escape of 
the whole argument- Sir, this boundary was fixed by a line 
drawn obliquely from Lake Nipissim, which line crossing 
the St. Lawrence and the Lake Champlain, formed an angle 
in the latitude of forty-five degrees. This constituted the 
south-west boundary of Canada ;=& beyond that the Province 
was to extend no further — and confined within this limit it 
remained from the year 1763 to this time. That was then the 
boundary of Canada ; and when that boundary was formed, 
that was the boundary of the government — and that bound- 
ary was fixed there because it was the boundary of the pos- 
session. There was then no considerable settlement to the 
south-west of that line. This line the people of Canada 
acquiesced in. They have since come before his Majesty's 
government, and have laid before it a complaint in which 
they state that this was a line drawn especially for the pur- 
pose of territorial jurisdiction, and the security of property ; 
but they represent that it is a line ill-suited for a gro wing- 
country . They do not complain that they have not the legal 
limits, but they complain of the climate to which they are re- 
stricted. " The Province," they say, " as it is now bounded, 
by a line passing through the forty-fifth degree of north lati- 
tude, is confined within too narrow limits ; this line is only 
fifteen leagues distant from Montreal and yet it is only on 
this side that the lands of the Province are fertile, and that 
agriculture can be cultivated to much advantage." Sir, if no 
injustice will thereby be done to any one, I don't know a 
more reasonable request than that their complaint should be 

* Burke, like many other speakers, confounds Canada with Quebec. 



APPENDIX. 183 

attended to. * * * The noble lord showed me the 
amendment, which by no means relieved my apprehensions. 
The reason why I feel so anxious is that the line proposed is 
not a line of geographical distinction merely ; it is not a line 
between New York and some other English settlement ; it is 
not a question whether you shall receive English law and 
English government upon the side of New York, or whether 
you shall receive a more advantageous government upon the 
side of Connecticut ; or whether you are restrained upon the 
side of New Jersey. In all these you still find English laws, 
English customs, English juries, and English assemblies, 
wherever you go. But this is a line which is to separate a 
man from the right of an Englishman. First, the clause pro- 
vides nothing at all for the territorial jurisdiction of the Prov- 
ince. The Crown has the power of carrying the greatest 
portion of the actually settled portion of the Province of New 
York into Canada. * * * The Bill turns freedom itself 
into slavery. These are the reasons that compel me not to 
acquiesce by any means, either in the proposition originally 
in the Bill, or in the amendment. Nay, the proposition in the 
amendment is a great deal worse, because you therein make 
a saving of the right of interference with, and may fix your 
boundary line at the very gates of, New York, perhaps in the 
very town itself, and subject that colony to the liability of be- 
coming a province of France. It was this state of things, 
Sir, that made me wish to establish a boundary of certainty. 
The noble lord has spoken upon this subject with a great deal 
of fairness. He says that if any gentleman will find a bound- 
ary of certainty, he will accept it. Whether, if we shall be 
able to find such a boundary, the colony of New York will 
be satisfied with it, I know not ; but speaking* here as a 
Member of Parliament, I do think the colony had better have 
a boundary much less in extent, yet reduced to such a cer- 
tainty that they may exactly know when and where they 
cease to be English subjects. The boundary originally settled 
between Canada and New York was entitled to contest with 



184 APPENDIX. 

the Crown under the first proclamation. That was given tip. 
I am glad the noble lord has got a map before him. They 
gave up a yast extent of country. I recommended them to 
give up for peace all that part which lies between that coun- 
try and the river St. Lawrence, and to take their departure 
from a line drawn through Lake Champlain in forty-five de- 
grees of latitude, as far as the Riyer St. Lawrence, then fol- 
lowing the course of that river through Lake Ontario and 
Lake Erie, to make it the western bound of the colony of 
Pennsylvania. These limits and bounds would give New 
York a territory sufficient to enable it to meet every exigency 
of government. It would give the Crown a boundary of 
certainty ; it would give the people of Canada a certainty of 
knowing upon what side of the water their territory began ; 
and it would give the subjects of Great Britain the power of 
knowing where they can be free. * * * He does not 
know enough of the state of that country to be able to adopt 
the line which he has drawn ; whereas nothing can be more 
geographically distinguished than water and land. This 
boundary is physically distinguished ; it is astronomically 
distinguished. It has been fixed by actual observation, and 
agreed upon by the surveyors. We have everything that 
geography, astronomy, and general ( convenience, stronger 
sometimes than either, can give to make this boundary defi- 
nite. I shall therefore now move the boundary which I have 
proposed, viz., by a line drawn from a point on the east side 
of Lake Champlain in 45 degrees north latitude, and by a 
line drawn in that parallel west to the River St. Lawrence, 
and up that river to Lake Ontario, and across that lake to the 
River Niagara, and from Niagara across Lake Erie to the 
north-west point of the boundary of Pennsylvania, and down 
the west boundary of that Province, by a line drawn from 
thence till it strikes the Ohio. If the noble lord admits this 
proposition, the Committee will no doubt be able to express it 
in proper words ; if not, I must beg that we may receive in- 
formation from a gentleman who can abundantly inform the 



APPENDIX. 185- 

House, and who is as ready to communicate it as any man I 
ever knew."^ 

Lord North. — We agree in principle, and I hope we shall 
succeed in drawing a clear boundary line ; but I am doubt- 
ful whether a clear bouudary line can be drawn by Parlia- 
ment. It strikes me that the only method is to leave it to be 
drawn after the passing of the Act, leaving it in such a man- 
ner that the line where drawn shall actually form a clear line 
between the Province of Canada and New York. The line 
as far as it appears by the map is very distinct. The objec- 
tion I have is precisely what the honourable gentleman has 
mentioned. I am not clear whether there are not on the 
south-east part of the Kiver St. Lawrence, Canadian settle- 
ments. I have been informed there are. I am sure there are 
no New York settlements in that part of the world. I think 
it more prudent to have the boundary line settled upon the 
spot, reserving, in the Act, all those lands that have been 
granted under any authority the old settlers. * • * * It 
is my opinion that all this uninhabited country added to 
Canada or added to New York should not be immediately 
considered as country which the Government are to grant; 
away. * * * ' 1 rise up at present to confirm the declara- 
tion I have made, that if a clear line can be made to the satis- 
faction of gentlemen, so that they are not likely to involve 
themselves by drawing a line in Westminster which would 
be better drawn in America, I shall not opiniatre it, but shall 
be very thankful to the gentleman who can draw that line. 

Mr. Burke. — * * * If Canada is in future to have 
boundaries determined by the choice of the Crown, the* 
Crown is to have the power of putting a great part of the 
subjects of England under laws which are not the laws of 
England. The government of France is good — all govern- 
ment is good — but compared with the English government, 
that of France is slavery. * * * The parties here are 

* Mr. Pownall, the Under-Secretary for the American colonies. 



186 APPENDIX. 

English liberty and French law ; and the whole Province of 
New York, further than it is defined by actual bound, is in 
the power of the Crown, not to adjudicate, but to grant, and 
hand over to the French. I do not suppose if the Crown 
were under the necessity of adjudging, that it would adjudge 
amiss ; but it is in the power of the Crown to grant even its 
power of adjudging. Where put on the English side, they 
are put in the power of the laws ; where put on the French 
side, they are put out of the power of the laws. Let us con- 
sider, then, whether it is not worth while to give a clear 
boundary, and let the man know whether he is or is not an 
Englishman. I shall take the sense of the Committee upon 
it. I am as much in earnest as ever I was in my life. I have 
produced a practical idea ; I can produce practical words. 

After a long and desultory conversation, the words pro- 
posed by Mr. Burke were inserted. The words — " Until it 
strike the Ohio ; and along the banks of the said river, west- 
ward to the banks of the Mississippi, and northward to the 
southern boundary of the territory to the Merchants' Adven- 
turers of England trading to Hudson's Bay ; and also all such 
territories, islands and countries, which have, since the 10th 
of February, 1763, been made part of the government of 
Newfoundland, be, and they are hereby, during* his Majesty's 
pleasure, annexed to and made part and parcel of the Prov- 
ince of Quebec" — were next read. 

On June 10th, Sir Charles Whit worth reported to the House 
the amendments which the committee had made to the Bill. 
The first clause being read, there was much puzzling about 
settling the boundary line. Mr. Edmund Burke, Mr. Jack- 
son, Mr. Barker, and Sir Charles Whitworth went up stairs, in 
order to settle it, while the House was supposed to be pro- 
ceeding upon it. The House continued for at least half-an- 
hour, doing nothing in the meantime. The difference was, 
whether the tract of country not inhabited should belong to 
New York or Canada ? At live o'clock, Mr. Burke returned 
with the amendments, some of which were agreed to, others 



APPENDIX. 187 

not. The following is the clause, as finally agreed to by the 
House : 

" That all the territories, islands and countries in North 
America, belonging to the Crown of Great Britain, bounded 
on the south by a line from the Bay of Chaleurs, along the 
islands which divide the rivers that empty themselves into 
the Eiver St. Lawrence, from those which fall into the sea, to 
a point in forty-five degrees of northern latitude on the west- 
ern bank of the Eiver Connecticut, keeping the same latitude 
directly west, through the Lake Champlain, until, in the 
same latitude, it meets the Eiver St. Lawrence ; from thence 
up the eastern bank of the said river to the Lake Ontario ; 
thence through the Lake Ontario and the river commonly 
called Niagara ; and thence along by the eastern and south- 
eastern bank of Lake Erie, following the said bank until the 
same shall be intersected by the northern boundary granted 
by the Charter of the Province of Pennsylvania, in case the 
same shall be so intersected ; and from thence along the said 
northern and western boundaries of the said Province until 
the said western boundary strike the Ohio ; but in case the 
said bank of the said Lake shall not be found to be so inter- 
sected, then following the said bank until it shall arrive at 
that point of the said bank which shall be nearest to the 
north-western angle of the said Province of Pennsylvania, 
and thence by a right line to the said north-western angle of 
the said Province ; and thence along the western boundary of 
the said Province until it strike the Eiver Ohio ; and along 
the bank of the said river, westward, to the banks of the 
Mississippi, and northward to the so ui hern boundary of the 
territory granted to the Merchants' Adventurers of England 
trading to Hudson's Bay ; and also all such territories, islands 
and countries which have, since the 10th of February, 1763, 
been made part of the government of Newfoundland, be, and 
they are hereby, during his Majesty's pleasure annexed to 
and made part and parcel of the Province of Quebec, as 
created and established by the said Eoyal Proclamation of the 
7th of October, 1763. 



APPENDIX. 



" Provided always, that nothing herein contained, relative 
to the boundary of the Province of Quebec, shall in anywise 
affect the boundaries of any other colony." * 



APPENDIX D. 

[Lord Mansfield to the Right Hon. G. Grenville.) 

Bloomsbury, Dec. 24, 1764. 

Dear Sir, — Since I saw you, I have heard from the King 
in general, and afterwards more particularly, but very indis- 
tinctly, from some persons who visited me last night, of a 
complaint concerning a civil government and a judge sent to 
Canada. 

Is it possible thai we have abolished their laws and customs 
and forms of judicature all at once ? — a thing never to be at- 
tempted or wished. The history of the world don't furnish 
an instance of so rash and unjust an act by any conqueror 
whatever, much less by the Crown of England, which has 
al ways left to the conquered their own laws and usages, with 
a change only so far as the sovereignty was concerned. 
Where other changes have happened, as in Ireland, they have 
been the work of great length of time, many emergencies, 
and where there was a pale of separation between the con- 
querors and the conquered, by their own laws at first, 

Berwick, the conquest made by Edward III., and yielded 
by the Treaty of Bretigny, retained their own municipal laws. 
Minorca does now. Is it possible that a man sansaveu, with- 
out knowing a syllable of their language or laws, has been 
sent over with an English title of magistracy unknown to 
them, the powers of which office must consequently be inex- 
plicable and unexecutable by their usages ? 

For G-od's sake learn the. truth of the case, and think of a 
speedy remedy. I was told last night that the penal statutes 
of England concerning Papists are to be held in force in 
Canada. 

*This section excluded the English colonists from the St. Lawrence, the Great 
Lakes and the Mississipi. 



APPENDIX. 189 

The fundamental maxims are that a country conquered, 
keeps her own laws, till the conqueror expressly gives new. 

A colony which goes from hence to settle in a waste conn- 
try, if they have an express constitution by charter (or so far 
as that is silent), carries with them snch a part of the common 
law of England as is adapted to and proper for their situation. 

A very small part of the common or statute law of Eng- 
land is law, there, by this maxim. Ecclesiastical laws, revenue 
laws and penal laws, and a thousand other heads, do not bind 
these by implication, though in force here at the time of their 
settlement. 

Perhaps the principal parts of this report may be untrue ; 
but I am so startled at it that I cannot help writing to you. 
You may easily learn from the Board of Trade whether there 
has been any act from hence to send them over in a lump a 
new and unknown law.* 

I have thought of the observation you made yesterday, 
from looking into the charters of some of the charter govern- 
ments. 

Though the question does not want this or any other au- 
thority, yet it will be a striking attestation to ignorant people, 
and an unanswerable argument ad homines ; and therefore I 
wish you would employ somebody to look with this view 
into the origin of their power to tax themselves and raise 
money at all. 

As to the charter and proprietary governments, it can only 
be found in the letters patent from which it must be derived. 

As to the King's commission and instructions to the gov- 
ernors of an early date, which may be found at the Council 
Office or the Board of Trade, I would particularly look into 
that of New York, which was taken from the Dutch, and in 
a few years afterwards changed her master. Their first com- 
mission by a King of England is by Charles the Second. 



* The remaining part of the letter refers to the right of Parliament to tax the colo- 
nies ; but I do not, as it is brief, suppress it. 



190 APPENDIX. 

I am just going out of town for the holidays. I could not 
help troubling you, for which I hope you will forgive me. 

Yours most affectionately, 

Mansfield. 
— Grenville Paper, vol. 2, p. 476. 



APPENDIX E. 

Captain Stirling, who was despatched in 1765 by •General 
Gage to take possession of the posts and settlements of the 
French in the Illinois country east of the Mississippi, upon 
his arrival, St. Ange surrendered Fort Chartres, and retired 
with the garrison of twenty-one men, and a third of the in- 
habitants of that settlement, to St. Louis, where he exercised 
the duties of commandant by the general consent of the 
people, till he was superseded by the Spanish governor, 
Piernes, in 1770. Upon assuming the government of the 
country, Captain Stirling published the following proclama- 
tion from General Gage, who was at this time the Com- 
mander-in-Chief of the British forces in North America : 

" "Whereas, by the peace concluded at Paris, the tenth day 
of February, 1763, the country of Illinois has been ceded to 
his Britannic Majesty, and the taking possession of the said 
country of the Illinois by the troops of his Majesty, though 
delayed, has been determined upon. We have found it good 
to make known to the inhabitants — 

" That his Majesty grants to the inhabitants of the Illinois, 
the liberty of the Catholic religion, as has already been 
granted to his subjects in Canada. He has consequently 
given the most precise and effective orders to the end that his 
new Roman Catholic subjects of the Illinois may exercise the 
worship of their religion according to the rites of. the 
Romish Church, in the same manner as in Canada. 

14 That his Majesty, moreover, agrees that the French in- 
habitants or others, who have been subjects of the Most 



APPENDIX. 191 

Christian King (the King of France), may retire in fall 
safety and freedom wherever they please, even to New 
Orleans, or any part of Louisiana ; although it should happen 
that the Spaniards take possession of it in the name of his 
Catholic Majesty (the King of Spain), and they may sell their 
estates, provided it be to the subjects of his Majesty, and 
transport their effects as well as their persons, without re- 
straint upon their emigration, under any pretence whatever 
except in consequence of debts or of criminal processes. 

" That those w r ho choose to retain their lands and become 
subjects of his Majesty, shall enjoy the same rights and privi- 
leges, the same security for their persons and effects, and the 
liberty of trade, as the old subjects of the King. 

" That they are commanded by these presents to take the 
oath of fidelity and obedience to his Majesty, in presence of 
Sieur Stirling, Captain of the Highland Eegiment, the bearer 
hereof, and furnished with our full powers for this purpose. 

" That we recommend forcibly to the inhabitants to con- 
duct themselves like good and faithful subjects, avoiding, by 
a wise and prudent demeanour, all causes of complaint against 
them. 

" That they act in concert with his Majesty's officers, so that 
his troops may take possession of all the forts, and order be 
kept in the country. By this means alone they will spare his 
Majesty the necessity of recurring to force of arms, and will 
find themselves saved from the scourge of a bloody war, and 
of all the evils which a march of an army into their country 
would draw after it. 

" We direct that these presents be read, published, and 
posted up in the usual places. 

" Done and given at head-quarters, New York, signed with 
our hands, sealed with our seal at arms, and countersigned 
by our Secretary, this 30th of December, 1764. 

" Thomas G-age. 

" By his Excellency, G-. Masturin " 



192 APPENDIX. 

APPENDIX F. 

(By the King.) 

A Proclamation. 
G-eorge R. 

" Whereas, we have taken into our Royal consideration the 
extensive and valuable acquisitions in America, secured to 
our Crown by the late definitive treaty of peace concluded 
at Paris the 10th of February last ; and being desirous that 
all our loving subjects, as well of our kingdoms as of our 
colonies in America, may avail themselves, with all con- 
venient speed of the great benefits and advantages which 
must accrue therefrom to their commerce, manufactures and 
navigation, we have thought fit, with the advice of our Privy 
^Council, to issue this our Royal Proclamation, hereby to pub- 
lish and declare to all our loving subjects that we have, with 
the advice of our said Privy Council, granted our letters pa- 
tent under our great seal of Great Britain, to erect within the 
countries and islands ceded and confirmed to us by the said 
treaty, four distinct and separate governments, styled and 
called by the names of Quebec, East Florida, West Florida, 
and Grenada, and limited and bounded as follows, viz. : 

" First, The Government of Quebec, bounded on the La- 
brador coast by the River St. John, and from thence by a line 
drawn from the head of that river, through the Lake St. John, 
to the south end of the Lake Nipissim ; from whence the said 
line, crossing the River St. Lawrence and the Lake Cham- 
plain, in forty-five degrees of north latitude, passes along the 
islands which divide the rivers that empty themselves into 
the said river St. Lawrence, from those which fall into the 
sea ; and also along the north coast of the Baie des Chaleurs, 
and the coast of the Gulf of St. Lawrence to Cape Rosieres, 
and from thence crossing the mouth of the River St. Law- 
rence by the west end of the Island of Anticosti, terminates 
at the aforesaid River St. John. 

" Secondly, The Government of East Florida, bounded on 



APPENDIX. 193 

the westward by the Gulf of Mexico and the Appal achicola 
river ; to the northward, by a line drawn from that part of 
the said river where the Chatahouchee and Flint rivers meet, 
to the source of St. Mary's river, and by the course of the 
said river to the Atlantic Ocean; and to the east and south by 
the Atlantic Ocean and the Gulf of Florida, including all 
islands within six leagues of the sea coast. 

" Thirdly, the Government of West Florida, bounded to the 
southward by the Gulf of Mexico, including all islands 
within six leagues of the coast from the River Appalachicola 
to Lake Pontchartrain ; to the westward, by the said Lake, 
the Lake Maurpas, and the Eiver Mississippi; to the northward, 
by a line drawn due east from that part of the Mississippi 
which lies in thirty-one degrees north latitude, to the River 
Appalachicola or Chatahouchee ; and to the eastward by the 
said river. 

" Fourthly, The Government of Grenada, comprehending 
the island of that name, together with the Grenadines, and 
the islands of Dominico, St. Vincent and Tobaga. 

' : And to the end that the open and free fishery of our sub- 
jects may be extended to, and carried on, upon the coast of 
Labrador and the adjacent islands, we have thought fit, with 
the advice of our said Privy Council, to put all the coast, 
from the Eiver St. John's to Hudson's Straits, together with 
the islands of Anticosti and Madeline, and all other smaller 
islands lying upon the said coast, under the care and inspec- 
tion of our Governor of Newfoundland. 

" We have also, with the advice of our Privy Council, 
thought fit to annex the islands of St John and Cape Breton, 
or Isle Royale, with the lesser islands adjacent thereto, to our 
Government of Nova Scotia. 

" We have also, with the advice of our Privy Council afore- 
said, annexed to our Province of Georgia all the lands lying 
between the rivers Altamaha and St. Mary's. 

" And whereas, it will greatly contribute to the speedy 
settling our said new governments, that our loving subjects 



194 APPENDIX. 

should be informed of our paternal care for the security of 
the liberties and properties of those who are and shall become 
inhabitants thereof, we have thought fit to publish and declare 
by this our proclamation, that we have, in the letters patent 
under our great seal of Great Britain, by which the govern- 
ments are constituted, given express power and direction to 
our governors of our said colonies respectively, that, so soon 
as the state and circumstances of the said colonies will admit 
thereof, they shall, with the advice and consent of the mem- 
bers of our Council, summon and call General Assemblies 
within the said governments respectively, in such manner 
and form as is used and directed in those colonies and prov- 
inces in America which are under our immediate govern- 
ment. And we have also given power to the said governors, 
with the consent of our said councils and the representative 
of the people, so to be summoned as aforesaid, to make, con- 
stitute and ordain laws, statutes and ordinances for the public 
peace, welfare and good government of our said colonies, and 
of the people and inhabitants thereof, as near as may be 
agreeably to the laws of England, and under such regulations 
and restrictions as are used in other colonies ; and, in the 
meantime, and until such Assemblies can be called as afore- 
said, all persons inhabiting in, or resorting to, our said colo- 
nies, may confide in our our Royal protection for the enjoy- 
ment of the benefit of the laws of our realm of England ; for 
which purpose we have given power under our great seal to 
the governors of our said colonies respectively, to erect and 
constitute, with the advice of our said councils respectively, 
courts of judicature and public justice within our said colo- 
nies, for the hearing and determining of all causes, as well 
criminal as civil, according to law and equity, and as near as 
may be agreeably to the laws of England ; with liberty to all 
persons, who may think themselves aggrieved by the sen- 
tences of such courts, in all civil cases, to appeal, under the 
usual limitations and restrictions, to us, in our Privy Council. 
" We have also thought fit, with the advice of our Privy 



APPENDIX. 195 

Council as aforesaid, to give unto the governors and councils 
of our three new colonies upon the continent, full power and 
authority to settle and agree with the inhabitants of our said 
new colonies, or to any other person who shall resort thereto, 
for such lands, tenements and hereditaments, as are now, or 
hereafter shall be, in our power to dispose of, and them to 
grant to any such person or persons, upon such terms and 
under such moderate quit-rents, services and acknowledg- 
ments as have been appointed and settled in other colonies, 
and under such other conditions as shall appear to us to be 
necessary and expedient for the advantage of the grantees, and 
the improvement and settlement of our said colonies. 

" And whereas, we are desirous upon all occasions to testify 
our Royal sense and approbation of the conduct and bravery 
of the officers and soldiers of our armies, and to reward the 
same, we do hereby command and empower our governors of 
our said three new colonies, and other our governors of our 
several provinces on the continent of North America, to 
grant, without fee or reward, to such reduced officers as have 
served in North America during the late war, and are actu- 
ally residing there, and shall personally apply for the same, 
the following quantities of land, subject at the expiration of 
ten years to the same quit-rents as other lands are subject to 
in the Province within which they are granted, as also subject 
to the same conditions of cultivation and improvement, viz. : 

" To every person having the rank of a field-officer, five 
thousand acres. 

" To every captain, three thousand acres. 

" To every subaltern or staff-officer, two thousand acres. 

u To every non-commissioned officer, two hundred acres. 

" To every private man, fifty acres. 

" We do likewise authorize and require the governors and 
commanders-in-chief of all our said colonies upon the conti- 
nent of North America, to grant the like quantities of land, 
and upon the same conditions, to such reduced officers of our 
navy of like rank as served on board our ships of war in 



196 APPENDIX. 

North America at the times of the reduction of Louisbure: 
and Quebec, in the late war, and who shall personally apply 
to our respective governors for such grants. 

" And whereas it is just and reasonable and essential to our 
interest and security of our colonies that the several nations 
and tribes of Indians with whom we are connected, and who 
live under our protection, should not be molested or disturbed 
in the possession of such parts of our dominions and territo- 
ries as, not having been ceded to, or purchased by us, are re- 
served to them, or any of them, as their hunting grounds ; 
we do, therefore, with the advice of our Privy Council, de- 
clare it to be our Royal will and pleasure that no governor or 
commander-in-chief in any of our colonies of Quebec, East 
Florida, or West Florida, do presume, upon any pretence 
whatever, to grant warrants of survey, or pass any patents 
for lands beyond the bounds of their respective governments, 
as described in their commissions ; as also that no governor 
or commander-in-chief of our other colonies or plantations in 
America, do presume for the present, and until our further 
pleasure be known, to grant warrants of survey, or pass pa- 
tents, for any lands beyond the heads or sources of any of the 
rivers which fall into the Atlantic Ocean from the west or 
north-west ; or upon any lands whatever which, not having 
been ceded to, or purchased by us, as aforesaid, are reserved 
to the said Indians, or any of them. 

" And we do further declare it to be our Royal will and 
pleasure, for the present, as aforesaid, to reserve under our 
sovereignty, protection and dominion for the use of the said 
Indians, all the lands and territories not included within the 
limits of our said three new governments, or within the lim- 
its of the territory granted to the Hudson's Bay Company ; as 
also all the lands and territories lying to the westward of the 
sources of the rivers which fall into the sea from the west 
and north-west as aforesaid ; and we do hereby strictly for- 
bid, on pain of our displeasure, all our loving subjects from 
making any purchase or settlements whatever, or taking pos- 



APPENDIX. 197 

session of any of the lands above reserved, without our 
special leave and license for that purpose first obtained. 

" And we do further enjoin and require all persons what- 
ever, who have either wilfully or inadvertently seated them- 
selves upon any lands within the countries above described, 
or upon any other lands which, not having been ceded to, or 
purchased by us, are still reserved to the said Indians as afore- 
said, forthwith to remove themselves from such settlements. 

" And whereas, great frauds and abuses have been commit- 
ted, in the purchasing lands of the Indians, to the great pre- 
judice of our interests, and to the great dissatisfaction of the 
said Indians ; in order, therefore, to prevent such irregulari- 
ties for the future, and to the end that the Indians may be 
convinced of our justice and determined resolution to remove 
all reasonable cause of discontent, we do, with the advice of 
our Privy Council, strictly enjoin and require, that no private 
person do presume to make any purchase from the said In- 
dians, of any lands reserved to the said Indians, within those 
parts of our colonies where we have thought proper to allow 
settlement ; but that if at any time any of the said Indians 
should be inclined to dispose of any of the said lands, the 
same shall be purchased only for us, in our name, at some 
public meeting or assembly of the said Indians, to be held for 
that purpose by the governor or commander-in-chief of our 
colony respectively within which they shall lie ; and in case 
they shall lie within the limits of any proprietaries, conform- 
able to such directions and instructions as we or they shall 
think proper to give for that purpose. And we do, by the ad- 
vice of our Privy Council, declare and enjoin that the trade 
with the said Indians shall be free and open to all our sub- 
jects whatever, provided that every person who may incline 
to trade with the said Indians, do take out a license for carry- 
ing on such trade, from the governor or commander-in-chief 
of any of our colonies respectively where such person shall 
reside, and also the security to observe such regulations as we 
shall at any time think fit ; by ourselves or commissaries t 



198 APPENDIX. 

be appointed for this purpose, to direct and appoint for the 
benefit of the said trade. And we do hereby authorize, en- 
join and require the governors and commanders-in-chief of 
all our colonies respectively, as well as those under our im- 
mediate government, as those under the government and di- 
rection of proprietaries, to grant such licenses, without fee or 
reward, taking especial care to insert therein a condition, that 
such license shall be void, and the security forfeited, in case 
the person to whom the same is granted, shall refuse or neg- 
lect to observe such regulations as we shall think proper to 
prescribe as aforesaid. 

" And we do further expressly enjoin and require all officers 
whatever, as well military as those employed in the manage- 
ment and direction of Indian affairs within the territories re- 
served as aforesaid for the use of the said Indians, to seize and 
apprehend all persons whatever who, standing charged with 
treasons, misprisions of treasons, murders or other felonies or 
misdemeanors, shall fly from justice, and take refuge in the 
said territory, and to send them under a proper guard to the 
colony where the crime was committed of which they shall 
stand accused, in order to take their trial for the same. 

" Given at our Court of St. James's, the seventh day of 
October, 1763, in the third year of our reign. 

" God Save the King" 



APPENDIX G. 

Extracts from The Present State of the European Settle- 
ments on the Mississippi, by Captain Philip Pitman, 
4to, London, 1770. 

" Fort Chartres, when it belonged to France, was the 
Seat of Government of the Illinois. The head-quarters of the 
English commanding-officer is now here, who, in fact, is the 
arbitrary governor of this country. The fort is an irregular 



APPENDIX. 199 

quadrangle ; the sides of the exterior polygon are 490 feet. It 
is built of stone, is plastered over, and is only designed' as a 
defence against the Indians The walls are two feet two 
inches thick, and are pierced with loop-holes at regular dis- 
tances, and with two port-holes for cannon in the faces, ana 
two in the flanks of each bastion. The ditch has never been 
finished. The entrance to the fort is through a very hand- 
some rustic gate. Within the walls is a banquette raised three 
feet, for the men to stand on when they fire through the loop- 
holes. The buildings within the fort are — a commandant's 
and a commissary's house, the magazine of stores, corps de 
garde and two barracks ; these occupy the square. Within 
the gorges of the fort are a powder - magazine, a bake- 
house and a prison, in the lower floor of which are four 
dungeons, and in the upper, two rooms, and an out-house be- 
longing to the commandant. The commandant's house is 
thirty-two yards long, and ten broad, &c. The commissary's 
house (now occupied by officers) is built on the same line as 
this, and its proportion and the distribution of its apartments 
are the same. Opposite these are the store-house and the 
guard-house ; they are each thirty yards long and eight broad. 
The former consists of two large store-rooms (under which is 
a large vaulted cellar, a large room, a bed-chamber, and a 
closet for the store-keeper ; the latter, of a soldiers' and offi- 
cers' guard-room, a chapel, a bed-chamber, a closet for the 
chaplain and an artillery store-room. The lines of barracks 
have never been finished ; they at present consist of two 
rooms each for officers, and three rooms each for soldiers. 
They are each twenty feet square, and have betwixt them a 
small passage. There are five spacious lofts over each build- 
ing, which reach from end to end ; these are made use of to 
lodge regimental stores, working and entrenching tools, &c. 
It is generally believed that this is the most convenient and 
best-built fort in North America." 

In 1756, Foit Chartres was rebuilt by order of the French 
G-overnment, in view of the war with England. It was then 



200 APPENDIX. 

half-a-mile from the Mississippi. In 1766 it was but eighty- 
yards from the bank. In 1768, Captain Pitman writes : 

" The bank of the Mississippi, next the fort, is continually 
falling in, being worn away by the current, which has been 
turned from its course by a sand-bank, now increased to a 
considerable island, covered with willows. Many experi- 
ments have been tried to stop this growing evil, but to no 
purpose. Eight years ago the river was fordable to the 
island ; the channel is now forty feet deep. 

" In the year 1761, there were about forty families in the 
village near the fort, and a parish church, served by a Fran- 
ciscan friar, dedicated to Ste. Anne. In the following year, 
when the English took possession of the country, they aban- 
doned their houses, except three or four poor families, and 
settled in the villages on the west side of the Mississippi, 
choosing to continue under the French Government." 

In 1772, the channel of the river reached the fort and the 
wall, and two bastions upon the west side were undermined, 
and fell, and the British garrison abandoned the place, and 
Kaskaskia became the Seat of Government for the Illinois 
country.^ 

" The Village of Notre Dame de Cascasquias is by far the 
most considerable settlement in the country of Illinois, as 
well from its number of inhabitants, as from its advantageous 
situation. 

i( Mons. Paget was the first who introduced water-mills in 
this country, and he constructed a very fine one on the river 
Cascasquias, which was both for grinding corn and sawing 
boards. It lies about one mile from the village. The mill 
proved fatal to him, being killed as he was working in it, with 
two negroes, by a party of Cherokees, in 1764. 

* For a very minute and interesting description of Fort Chartres, see Dr. Beck's 
Gazeteer of Illinois, 1820 : " Over the whole Fort, there is a considerable growth of 
trees, and in the hall of the houses, there is an oak about eighteen inches in diameter. 
• . . . Trees more than three feet in diameter are within the walls. It is a ruin in 
the midst of a dense forest, and did we not know its history, it might furnish a fruitful 
theme for antiquarian speculation. 



APPENDIX. 201 

" The principal buildings are the church and Jesuits'- 
house, which has a small chapel adjoining it ; these, as well as 
some other houses in the village, are built of stone, and, con- 
sidering this part of the world, make a very good appearance. 
The Jesuits' plantation consisted of two hundred and forty 
arpents of cultivated land, a very good stock of cattle, and a 
brewery : which was sold by the French commandant, after 
the country was ceded to the English, for the Crown, inconse- 
quence of the suppression of the Order. 

" Mons. Beauvais was the purchaser, who is the richest of 
the English subjects of this country. He keeps eighty slaves ; 
he furnishes eighty-six thousand weight of flour to the King's 
magazine, which was only a part of the harvest he reaped in 
one year. 

" Sixty-five families reside in this village, besides merchants, 
other casual people and slaves. The fort, which was burnt 
down in October, 1766, stood on the summit of a high rock 
opposite the village, and on the opposite side of the Koskas- 
kin river. It was an oblongular quadrangle, of which the 
exterior polygon measured two hundred and ninety feet by 
two hundred and fifty-one feet. It was built of very thick 
squared timber, and dovetailed at the angles. An officer and 
twenty soldiers are quartered in the village. The officer go- 
verns the inhabitants, under the direction of the commandant 
at Chartres. Here are also two companies of militia." 

" La Prarie de Roches is about seventeen miles from 
Cascasquias. It is a small village, consisting of twelve dwel- 
ling houses, all of which are inhabited by as many families. 
Here is a little chapel, formerly a chapel-of-ease to the church 
at Fort Chartres. The inhabitants here are very industrious, 
and raise a great deal of corn, and every kind of stock. The 
village is two miles from Fort Chartres. It takes its name 
from its situation, being built under a rock that runs parallel 
with the river Mississippi, at a league distance, for forty miles 
tp. Here is a company of militia, the captain of which regu- 
lates the police of the village. 1 ' 



202 APPENDIX. 

" Saint Phillippe is a small village about five miles from 
Fort Chartres, on the road to Kaoquias. There are about six- 
teen houses and a small church standing, All the inhabitants > 
except the captain of the militia, deserted it, in 1765, and 
went to the French side. The captain of the militia has about 
twenty slaves, a good stock of cattle and a water-mill for corn 
and planks. This village stands in a very fine meadow, about 
one mile from the Mississippi." 

" The village of Satnte Famille de Kaoquia (Cahokia) is 
generally reckoned fifteen leagues from Fort Chartres, and six 
leagues below the mouth of the Missouri. It stands near the 
side of the Mississippi, and is marked from the river by an 
island of two leagues long. The village is opposite to the 
centre of this island ; it is long and straggling, being three- 
quarters of a mile from one end to the other. It contains 
forty-five dwelling-houses, and a church near its centre. The 
situation is not well chosen, as in the floods it is generally 
overflowed two or three feet. This was the first settlement 
on the Mississippi. The land was purchased of the savages 
by a few Canadians, some of whom married women of the 
Kaoquias nation, and others brought wives from Canada, and 
then resided there, leaving their children to succeed them. 
The inhabitants of this place depend more on hunting, and 
their Indian trade, than on agriculture, as they raise scarcely 
corn enough for their own consumption ; they - have a great 
plenty of poultry, and good stocks of horned cattle. The 
Mission of St. Sulpice had a very fine plantation here, and an 
excellent house built on it. They sold this estate, and a very 
good mill for corn and planks, to a Frenchman who chose to 
remain under the English Government. They also disposed 
of thirty negroes, and a good stock of cattle to different 
people in the country, and returned to France in 1764. What 
is called the Fort, is a small house standing in the centre of 
the village. It differs nothing from the other houses, except 
in being one of the poorest. It was formerly enclosed with 
high palisades, but these were torn down and burnt. Indeed, 
a fort at this place could be of little use." 



APPENDIX. 20& 

APPENDIX H. 

Extracts from the Diary of Colonet, Croghan, 
' Deputy-Superintendent of the Northern Indian 
Department. 

Colonel G-eorge Croghan, the Commissioner of Sir William 
Johnson, went to the west to learn the disposition of the 
French inhabitants, and to secure, if possible, their adhesion 
to the English interest ; and to prevent a second Indian war. 
He left Fort Pitt on the 15th of May, 1764, and was taken 
prisoner on the 8th of June by a party of Indians, and was 
carried to Yincennes. He says : " On my arrival there, I 
found a village of about eighty or ninety French families set- 
tied on the east side of this river, being one of the finest 
situations that can be found. The country is level and clear, 
and the soil very rich, producing wheat and tobacco. I think 
the latter preferable to that of Maryland or Virginia. The 
French inhabitants hereabouts are an idle, lazy people, a par- 
cel of renegaders from Canada, and are much worse than the 
Indians. They took a secret pleasure at our misfortunes, and 
the moment we arrived, they came to the Indians, exchanging 
trifles for their valuable plunder. As the savages took from 
me a considerable quantity of gold and silver in specie, the 
French traders extorted two half-johannes from them for one 
pound of vermilion. 

" Here is likewise an Indian village of the Pyankeshaws, 
who were much displeased with the party that took me, tel- 
ling them, ' our chiefs and your chiefs have gone to make 
peace ; and you have begun a war, for which our women and 
children will have reason to cry.' From this post, the Indians 
permitted me to write to the Commander, at Fort Chartres, 
but would not suffer me to write to anybody else (this, I ap- 
prehend, was a precaution of the French, lest their villainy 
should be perceived too soon), although the Indians had given 
me permission to write to Sir William Johnson and Fort Pitt 



204 APPENDIX. 

on our march, before we arrived at this place. But immedi- 
ately after our arrival, they had a private council with the 
French, in which the Indians urged (as they afterwards in- 
formed me) that as the French had engaged them in so bad 
an affair, which was likely to bring a war on their nation, 
they now expected a proof of their promise and assistance. 
They delivered the French a scalp and a part of the plunder, 
and wanted to deliver some presents to the Pyankeshaws, 
but they refused to accept of any, and declared that they 
would not be concerned in the affair. This last information I 
got from the Pyankeshaws, as I have been well acquainted 
with them several years before this time. 

" Post Vincent is a place of great consequence for trade, 
being a fine hunting country all along the Ouabache (Wa- 
bash), and too far for the Indians, which reside hereabouts, to 
go either to the Illinois or elsewhere to fetch their necessaries. 
" June 23. — .... The distance from Post Vincent to 
Ouicatanon is 210 miles. This place is situated on the Oua- 
bache. About fourteen French families are living in the Fort, 
which stands on the north side of the river. The Kickapoos 
and Musquattinees, whose warriors had taken us, live nigh 
the fort, on the same side of the river, where they have two 
villages ; and the Ouicatanons have a village on the south 
side of the river. At our arrival at this post, several of the 
Wawcattonans (or Ouicatanons), with whom I had been for- 
merly acquainted, came to visit me, and seemed greatly con- 
cerned at what had happened. They went immediately to 
the Kickar5oos and Musquattinees, and charged them to take 
the greatest care of us till their chiefs should arrive from the 
Illinois, where they were gone to meet me some time ago, and 
who were entirely ignorant of this affair, and said the French 
had spirited up this party to go and strike us. 

" The French have a great influence over these Indians, 
and they never fail in telling them many lies to the prejudice 
of his Majesty's interest, by making the English nation odious 
and hateful to them. I had the greatest difficulties in remov- 



APPENDIX. 205 

ing these prejudices. As these Indians are a weak, foolish 
and credulous people, they are easily imposed on by a design- 
ing people, who have Led them hitherto as they pleased. The 
French told them that as the Southern Indians had for two 
years past made war on them, it must have been at the insti- 
gation of the English, who are a bad people. However, I 
have been fortunate enough to remove their prejudice, and in 
a great measure their suspicions against the English. The 
country hereabouts is exceedingly pleasant, being open and 
clear for many miles, the soil very rich and well watered, all 
plants have a quick vegetation, and the climate very tempe- 
rate through the winter. This post has always been a, very 
considerable trading place. The great plenty of furs taken 
in this country, induced the French to establish this post, 
which was the first upon the Ouabache, and by a very advan- 
tageous trade, they have been richly recompensed for their 
labour. 

" August 1. — The Twigtwee village is situated on both sides 
of a river called the St. Joseph. This river, where it falls into 
the Miami river, about a quarter of a mile from this place, is 
about one hundred yards wide, on the east side of which 
stands a stockade fort, somewhat ruinous. 

" The Indian village consists of about forty or fifty cabins, 
besides nine or ten French houses, a runaway colony from 
Detroit, during the Indian war ; they were concerned in it, 
and being afraid of punishment, came to this post, where, 
ever since, they have spirited up the Indians against the Eng- 
lish. All the French residing here are a lazy, indolent people, 
fond of breeding mischief and spiriting up the Indians against 
the English, and should by no means be suffered to remain 
here. The country is pleasant, the soil rich and well watered. 
After several conferences with these Indians, and their deliv- 
ering me up all the English prisoners they had, on the 6th of 
August we set out for Detroit, down the Miami river, in a 
canoe. 

" August 17. — In the morning we_arrived at the fort, which 



206 APPENDIX. 

is a large stockade, inclosing about eighty houses ; it stands 
close on the north side of the river, on a high bank, com- 
mands a very pleasant prospect for nine miles above and nine 
miles below the fort ; the country is thickJy settled with 
French ; their plantations are generally laid out about three 
or four acres in breadth on the river, and eighty acres in 
depth ; the so:l is good, producing plenty of grain. All the 
people here are generally poor wretches, and consist of three 
or four hundred French families, a lazy, idle people depend- 
ing chiefly on the savages for their subsistence ; though the 
land, with little labour, produces plenty of grain, they 
scarcely raise as much as will supply their wants, in imitation 
of the Indians, whose manners and customs they have en- 
tirely adopted, and cannot subsist without them. The men, 
women and children speak the Indian tongue perfectly well. 
In the last Indian war, the most part of the French were con- 
cerned in it (although the whole settlement had taken the 
oath of allegiance to his Britannic Majesty) ; they have there- 
fore great reason to be thankful to the English clemency in 
not bringing them to deserved punishment. Before the late 
Indian war, there resided three nations of Indians at this 
place — the Putawatimes, whose village was on the west side 
of the river, about one mile below the fort ; the Ottawas, on 
the east side, about three miles above the fort ; and the 
Wyandottes, whose village lies on the east side, two miles 
below the fort. The former two nations have removed to a 
considerable distance, and the latter still remain where they 
were, and are remarkable for their good sense and hospitality. 
They have a particular attachment to the Roman Catholic re- 
ligion ; the French, by their priests, have taken uncommon 
pains to instruct them." 

Rogers says, in his Account of North America : " When I 
took possession of the country (Detroit) soon after the surren- 
der of Canada, they were about 2,500 in number, there being 
near 500 that bore arms, and near 300 dwelling-houses." 
(p. 168.) 



APPENDIX. 207 

" In 1764 there were but men enough to form three compa- 
nies of militia." — Mante's History of the War in North America- 
p. 525. 

In 1768, the census, when taken, showed the population to 
be 572. 

Bancroft says that he has a MS. in his possession contain- 
ing the .recollections of Madame Catherine Thibeau, in which 
it is stated that " about sixty French families in all when the 
the English took possession of the country ; not more than 
eighty men at the time. Yery few farms ; not more than 
seven or eight farms settled." 

" July 18, 1765. — I set off for the Illinois with the chiefs of 
all those nations, when by the way, we met with Pondiac, 
together with the deputies of the Six Nations, Delawares and 
Shawanees, which accompanied Mr. Frazer and myself down 
the Ohio, and also deputies with speeches from the four 
nations living in the Illinois country, to me and Six Nations, 
Delawares and Shawanees, on which we returned to Onita- 
non, and there held a conference, in which I settled all mat- 
ters with the Illinois Indians, Pondiac and they agreeing to 

everything the other nations had done The 

French had informed them that the English intended to take 
their country from them, and give it to the Cherokees to settle 
on, and that if ever they suffered the English to take posses- 
sion of their country, they would make slaves of them, that 
this was the reason of their opposing the English hitherto 
from taking possession of Fort Chartres they de- 
sired that their Father, the King of England, might not look 
upon his taking possession of the forts which the French had 
formerly possessed, as a title for its subjects to possess their 
country, as they had never sold any part of it to the French, 
and that I might rest satisfied that whenever the English 
came to take possession, they would receive them with open 
arms." — Crogharts Diary ; also N. Y. Hist. Doc. vol. 8, p. 781. 



208 appendix. 

Thoughts on Indian Affairs, by Colonel Broad 
street. — Extract. 

" I am assured, by persons lately from Illinois, that exclu- 
sively of the French garrison there, the inhabitants are six 
hundred fighting men, have one thousand negroes, well ac- 
customed to the use of arms, averse to our taking of the 
country, and having painted us in such colours to the ' nume- 
rous savages near them, that the latter will certainly endea- 
vour to prevent the troops getting there by the Mississippi, 
even should the Indians near the sea allow them to pass, 
which they think they will not, unless well paid for it, which 
will not answer, what may perhaps be expected. They add 
that this is their opinion also, that all attempts to get posses- 
sion of the Illinois with less than three thousand men will fail, 
and that those troops should go down the Ohio river, and that 
the expedition be carried on with such secrecy, that they may 
enter the Mississippi ninety miles below Fort Chartres, before 
the inhabitants can have intelligence of it, and time to apprize 
all the savages."—^. Y. Hist. Doc, vol. 8, p. 633. 

These statements differ very widely. This difference may 
in some measure be accounted for by remembering that the 
men were nearly all fur-traders, and that after the war with 
Pontiac was over, many went to Mackinac, to Nipigon, Grand 
Portage, Green Bay and other points, to carry On the trade of 
the north-west. Some families went beyond the Mississippi, 
to avoid becoming subjects of Great Britain, not knowing 
that France had ceded Louisiana to Spain. 



APPENDIX. 209 

APPENDIX I. 

[This document seems to have governed the conduct of the Due de Choiseul in his 
propositions first made to Mr. Pitt ; and I append as serving to elucidate that corres- 
pondence.] 

Extract. — Paris Documents XVII. (page 1134.) 

Memoir on the Boundaries of Canada. 
By M. Dumas. 

'Tis supposed that the plenipotentiaries named for the 
future Congress, are incapable of adopting the frivolous ideas 
entertained in France respecting our possessions in Canada ; 
statesmen have notions different from the simple vulgar. 
The French are too volatile and too superficial to trouble 
themselves about the future ; but Ministers whom wisdom 
has selected and ability directs, will of themselves observe 
that the interests of commerce, the progress of navigation, 
the good of the State and the King's glory necessarily require 
that the restitution of Canada be laid down as a preliminary 
in the Treaty of Peace. 

In more favourable conjunctures, we would be justified in 
demanding of the English, damages corresponding to the 
enormous depredation of our marine, as well commercial as 
national ; but the circumstances which will exist at the con- 
clusion of the peace, are to decide the sacrifices we shall be 
obliged to make, or the advantages which are possibly to re- 
sult therefrom. Commerce has changed the face of Europe ; 
it is now evident that, in the long run, the more commercial 
nation will become the more powerful. 

We can no longer dispense with America, without falling 
sensibly from our state of splendour. 

On the restitution of Canada depends the fate of the rest 
of our colonies. 

These principles, clearer than the day, once admitted, that 
restitution ought to form the basis and foundation of the 
Treaty of Peace. 



210 APPENDIX. 

But will the work of our Ministers be durable ? For want 
of local knowledge, will they be in a condition to manage 
beneficially the interests of the King and nation in this re- 
gard ? Will they prevent the subterfuges in which English 
trickery will not fail to envelop them ? If the English desire 
peace, do they desire it to be lasting ? Will they renounce 
that system of maritime despotism which constitutes the sole 
object of their policy ? Will they not preserve a constant 
hankering to render themselves masters of the whole of 
America ? And will they not allow it to appear when we 
shall be least on our guard ? Incapable of accomplishing 
that project now, in consequence of the exhaustion of their 
finances, will they not renew it at another time ? In front of 
an enemy so active, so ambitious, so enterprising, conjectures 
are as go@d as demonstrations ; the past cannot render us too 
cautious for the future. 

By a fatality which cannot be comprehended, the English 
were better acquainted than we before the war, with the 
topographical map of our possessions. Aided by similar help, 
what advantage do they not possess to cheat us ? To this ob- 
ject, then, should be directed all the prudence and sagacity 
of our plenipotentiaries. 

Boundaries. 

I limit their labours, respecting Canada, to four general ob- 
jects : 

1st. The entire property of both shores of the River and 
G-ulf of St. Lawrence. 

2nd. The property of the lakes and rivers which form the 
natural communication between Canada and Louisiana ; they 
consist of Lake Ontario, Lake Erie, and the Ohio. 

3rd. That neither of the two nations can form any estab- 
lishments on the rivers watering the possessions of the other. 

4th., That both colonies shall exist and increase by popu- 
lation, without covering their frontiers with advanced posts, 
which is a principle of jealousy, suspicion and distrust ; an 



APPENDIX. 211 

occasion always at hand, or a pretext often specious, for a 
rupture between the two nations. 

As for the first article — to cede to the English, as they pre- 
tend the entire peninsular of Acadia is to reduce ourselves 
evidently to a precarious possession. That peninsula is sus- 
ceptible of an immense population ; its position is one of the 
most advantageous, both for the erection of fortifications, and 
of posts there. Solid settlements of every description can be 
found there ; agriculture can be followed with the greatest 
success. In vain would France flatter herself that she should 
preserve in peace the possession of the mouth of the river, if 
the English obtained the entire cession of that penirasula. 
Already masters of Newfoundland, they should grant us the 
property of a country whereof they would guard the en- 
trance. 

The peace will scarcely be signed, when the activity of 
that ambitious people will be revived ; soon will they be seen 
establishing themselves on the north side of that peninsula, 
and neglecting the remainder, if necessary, in order to tran- 
sport to that quarter all their industry in favour of planta- 
tions. 

"What service would not the plenipotentiaries be rendering 
the State, if by their ability, they would induce the English 
to consent to a division of that peninsula, so that France 
should preserve the property of the northern part, from Cape 
Can so to Minas ? 

But if their zeal become useless, if English firmness leave 
no hope on that point, they ought to be prepared to rather 
break all conference, than to give up an inch of ground on 
that continent. 'Tis evident that our colony would lose 
thereby all communication with the metropolis ; we should 
no longer possess the free entrance of the river, except so far 
as the English would think proper. The lines of demarca- 
tion which separate the respective possessions on the map, 
annexed to this memoir,^ are drawn in accordance with the 

* The map is wanting. — Ed. 



212 APPENDIX. 

largest sacrifices that it is possible for France to make. 'Tis 
for the plenipotentiaries to take advantage of favourable 
events, to obtain the best terms ; but in all possible reverses, 
'twill be more advantageous for the King and the State to re- 
nounce Canada, and consequently Louisiana, which cannot 
exist without it, than to cede an inch of territory beyond that 
division. 
The blue colour indicates the French possessions. 
The red indicates the English possessions. 
The green, what can be ceded towards Hudson's Bay — 
should events require France to make further additional sac- 
rifices. 

I have said, and repeat it, Louisiana cannot exist for us 
without Canada. But 'tis more advantageous for France 
promptly to cede these two colonies to the English, than to 
accept conditions worse than those indicated by the lines 
draw r n on that map. 

On this hypothesis, let the river Pentagouet be the 
boundary of the English possessions on the continent, on 
the N.E., and let them be precluded from settling only 
the right bank. 

Let the Eiver St. John bound the French settlements, 

and let them be precluded from settling only the left bank. 

The territory between these two rivers shall perpetually 

remain neutral and undivided between both nations, as 

marked on the map by the yellow colour. 

The second object of the labour of our plenipotentiaries 
relative to Canada, regards the communication of that 
colony w T ith Louisiana. The projects of the English w^ould 
be accomplished beyond their hopes, were the freedom of 
that communication not stipulated and solidly established 
by the treaty of peace ; 'twould be separating two colo- 
nies, which cannot sustain themselves except by their im- 
mediate affinity. Now that communication can occur only 
by the Ohio, every other route renders it very difficult, 
often even impracticable. 'Tis essential, then, to insist 
strongly on the entire possession of the Ohio. 



APPENDIX. 213 

That river, navigable throughout all its course for very- 
large craft, threatens Louisiana afar, and combines the ad- 
vantage of distance in concealing preparations, with that 
of extreme rapidity of current for promptitude of execution. 

To make the Ohio the boundary of the respective colo- 
nies, is to surrender it entirely to the English. In fact, 
already the English population is advancing towards that 
river ; it has only one step to take to clear the Apalachies, 
and that step would be taken on the day after the sign- 
ing of the treaty. The left bank of the Ohio would be 
under English cultivation in less than four years, whilst 
our population would not reach that point in the space of 
a century. Who does not perceive in that explanation the 
approaching and inevitable fall of Louisiana ? 

The entire possession of the Ohio cannot, then, be too 
much insisted on, the Apalachies constituting the limits ; 
but if events were such as to force us to give way on that 
important article, the only middle course to adopt is marked 
on the map by the yellow colour, viz., to leave the course of 
that river neutral, unsettled, without ownership, free to both 
nations to convey on it their goods for movable trade, with 
express reservation to France of the communication between 
both those colonies. 

The possession of lakes Ontario and Erie, which is the 
consequence of that communication, is a point of the greatest 
interest to us, the rather as for want thereof, those lakes 
assure another passage by the Miamis and Ouabache rivers, 
more difficult, more uncertain, but which furnishes neverthe- 
less a resource in times of misfortune. I admit that very 
favourable events would be required to reduce the English to 
abandon the south shore of Lake Ontario, of which they are 
a long time in possession, through Fort Chouequen — a pos- 
session usurped, but constant, and, as it were, unopposed ; an 
empty protest by the French Government, when the first 
foundations of that post were laid, is the only contradiction 
they have experienced. 



214 APPENDIX. 

If circumstances were such, on the conclusion of the peace, 
as that France had to make good its advantages^ that would 
be the moment to protest against that usurpation. This im- 
portant object merits the greatest attention of our plenipoten- 
tiaries. It is sufficient to consider the course of the waters to 
perceive that that lake commands the whole of Canada. 
General Amherst has found no route more certain for inva- 
sion ; the event has not over-justified his principles and 
mind. 

If, on the contrary, we are reduced to take back Canada in 
the same condition that we possessed it before the war, 
France might consent to confine its cultivated settlements to 
the north shore of Lake Ontario, leaving the south shore free 
from the Bay of Niaoure* to the Eiver Niagara. 

The English would preserve the freedom of conveying- 
their merchandise for movable trade to the mouth of the 
Chouequen river, and could extend themselves only to the 
Onondaga river on one side, and as far as the River & la 
Famine on the other. 

But nothing should make France give up the property of 
the soil, so that the freedom of trade granted to the English 
could not at any time invest them with a title thereto. 

Let their possessions be always confined to the heads of 
the rivers by which they are watered, and let the height of 
land be constantly the limit between the two nations. 

The entire possession of Lake Erie ought to belong to 
France incontestably up to the head waters of the streams 
that empty into that lake on the south side ; the rivers flow- 
ing towards the Ohio are included in the neutrality proposed 
by that river. 

The third object proposed at the head of this memoir, will 
be rendered clearer by a brief reflection. 

The English are ten to our one in America. But if passing 
the height of lands, we should push our posts as far as the 
heads of the rivers which water the English colonies, all 
their superiority in numbers, means and resources would not 



APPENDIX. 215 

guarantee them against an invasion when it should please us 
to attempt it. 

He who meditates an expedition, prepares it secretly, and 
when 'tis time to put it in execution, if he have in his favour 
the current of the stream which conveys him with rapidity, 
he surprises his enemy, and infallibly succeeds ; the same is 
not the case where the agressor has to ascend the rivers, has 
portages to make, lakes to traverse and mountains to pass. 
The immense preparations necessary to be made for that pur- 
pose discover the movement, and the slowness of the execu- 
tion affords time to the menaced province to place itself in a 
state of defence. 

The EngJish Colonies are in the latter position in respect 
to Canada, and Canada would be in the first relative to the 
English Colonies were the English to advance their settlements 
on Lake Champlain, Lake Ontario, or the Ohio, 

I am fully convinced, and every man of sense who is con- 
versant with the manner in which war can be carried on in 
that country, will agree with me that all the resources 
of the State will never preserve Canada if the Eng- 
lish are once settled at the heads of our rivers. 'Tis, 
again, one of the conditions that must never be consented to. 
Should peace be concluded under unfavorable circumstances 
to France, I point out the only middle course to be adopted, 
which is the neutrality of certain districts ; such might Lake 
St. Sacrament be without great prejudice to us, provided the 
English confine their settlements to the sources of the waters 
flowing into the River of Orange. 

Come we now to the fourth principle : 

I know nothing more useless in that country than forts to 
cover the frontiers ; they are equally a burthen to both nations, 
which have an equal interest in demolishing them ; they are, 
in time of peace, a source of useless expense, and experience 
has demonstrated that, in time of war, they would be good 
for nothing. These frontier posts are adapted only to create 
difficulties, to afford umbrage and sometimes furnish pretexts 
for a rupture. 



216 APPENDIX. 

They would favour that nation which would preserve the 
the desire to seize the possessions of the other. By aid 
of the stand-points, it would pounce on its enemy when least 
expected, whilst every considerable enterprise becomes more 
difficult, more tedious, were they no longer in existence. If 
entrepots must be established, the step forward is a cry 
" To arms." 

The French plenipotentiaries will labor usefully for that 
Colony, and more profitably still for the Royal Treasury, if 
they agree with the British Ministers on not preserving any 
post on the frontiers on either side ; thus, Couequen and 
Niagara will be demolished. 

That does not exclude useful settlements in the interior of 
the possessions, either relatively to trade or otherwise, which 
each nation is to be at liberty to direct, according to its inter- 
ests ; but merely on what is called frontier, an outlet which 
may tend to supply means of an invasion. 

To place matters at the worst, if the fortune of war be un- 
favourable to France, this campaign, and peace be concluded 
in an unpropitious moment for us : 

If, in order to obtain the conditions I propose, we be under 
the necessity of making new sacrifices in any part of Canada, 
the least dangerous for us would be to allow more extent to 
the English possessions in the direction of Hudson's bay. 
Let us cede to them the whole of Lake Superior, rather than 
one inch of territory in the south part, at this side the height 
of land or the Apalachies. That sacrifice which is to be 
made by France at the most critical moment, is marked by the 
green colour on the map. 

Anything beyond those lines of demarcation, and France 
must give up Canada, inasmuch as it is evident she cannot 
preserve it ; moreover, to maintain ourselves in that state, the 
Minister essentially and constantly occupy himself therewith ; 
but above all things, must men be carefully selected, to whom 
the government, the police and finances are to be confided. 

Otherwise we shall labour for our enemies. Canada, bathed 



APPENDIX. 217 

in the blood of our unfortunate Colonists, will soon be the 
appendage of the English. Our clearances, our settlements, 
our villages, will be so much fruit to be gathered by them 
when they have arrived at maturity. 

Let the height of land and the Apalachies be the limits 
between the two peoples ! Nature appears to have marked 
them expressly. 

The caprice of man cannot change that barrier, always per- 
manent, and always ready* to protest against the usurper. 
People aspire to a/<xctitious peace when they seek to establish 
it on arbitrary lines which the revolutions of time or the 
interests of men can destroy. 'Tis, perhaps, a fault into which 
have fallen our ablest negotiators, yet 'tis the most important 
object of a treaty of peace, since it destroys or foments the 
fatal germ which is the occasion of most wars. The height of 
lands and the Apalachies once determined on as the line of 
separation between the two Colonies, the modifications, the 
compromises I propose neutralizing certain districts, may be 
admitted according as circumstance will be more or less favour- 
able to France, when peace will be concluded. 

One reflection more remains to be submitted, which, al- 
though not bearing directly on the boundaries, is, nevertheless, 
very intimately connected with them. 

Considering the enormous expense entailed on us by the 
service of Indians in the war, I have always thought that the 
King would maintain at much less expense in Canada, a per- 
manent corps of troops, capable of defending it at all times, 
and when I have weighed, with reflection, the utility of their 
assistance, I have found it to be only one of opinion and preju- 
dice. But this prejudice is founded on the terror inspired by 
their cruelty and barbarity in their customs ; it consequently 
will preserve its power. 

This terror will always be very useful to the nation which 
will be best able to manage the alliance and attachment of 
those people. We posses one real advantage over the English 
in this regard ; let us carefully avoid doing it the smallest 



218 APPENDIX. 

damage by any convention with our enemies which would 
cause the Indians to suspect our alliance and good faith. 
However simple and natural such an accord might be, the 
English would not fail to present it to the Indians in the light 
that would render it odious to them. These people are proud, 
jealous, suspicious, and vindictive ; an appearance of defection 
on our part, after all the blood they have poured out in our 
defence, would render these irreconcilable to us from generation 
to generation, and that would be the greatest of misfortunes 
for both our Colonies. 

Our plenipoteniaries ought to be distrustful on this point. 
I am fully convinced that the British Ministers will set snares 
for them on this point, which is of more importance tor them 
in America than the gain of many battles. 

As for the rest, a G-overnor-G-eneral. instructed and atten- 
tive, will know how to maintain the alliance of all the people 
of this continent in peace as in war, without those enormous 
expenses which knavery conducts ignorance tolerates. 

(Signed) Dumas. 

Paris, 5th April, 1761. 

Definitive Treaty of Paris, 1763. 

Article 4. — His most Christian Majesty renounces all pre- 
tensions which he has heretofore formed, or m ight form, to 
Nova Scotia or Acadia in all its parts, and guarantees the 
whole of it, and with all its dependencies, to the King 
of Great Britain ; moreover, his most Christian Majesty 
cedes and guarantees to his said Britannic Majesty, in full 
right, Canada, with all its dependencies, as well as the Island 
of Cape Breton, and all the other Islands and coasts in the 
Grulf and River St. Lawrence, and in general, everything that 
depends on the said countries, lands, islands and coasts, 
with the sovereignty, property, possession and all rights, 
acquired by treaty or otherwise, which the most Christian 
King and the Crown of France have had till now over the 
said countries, islands, lands, places, coasts and their inhabit- 



APPENDIX. 219 

ants, so that the most Christian King cedes and makes over 
the whole to the said King and to the Crown of G-reat Britain,, 
and that in the most ample form without restriction, and 
without any liberty to depart from the said cession and 
guaranty under any pretence, or to disturb Great Britain in 
the possessions above mentioned. * ■* * * * 

Article 7. — In order to re-establish peace on solid and durable 
foundations, and to remove forever all subject of dispute with 
regard to the limits of the British and French territories on 
the continent of America ; it is agreed, that, for the future,, 
the confines between the Dominions of his Britannic Majesty 
and those of his most Christian Majesty, in that part of the 
world shall be fixed irrevocably by a fine drawn along the 
middle of the Mississippi from its source to the Eiver Iberville,, 
and from thence by a line drawn along the middle of this 
river and the lakes Maurepas and Ponchartrain to the sea ; 
and for this purpose the most Christian King cedes in full 
right, and guarantees to his Britannic Majesty the river and 
port of the Mobile, and everything which he possesses on the 
left side of the Eiver Mississippi, except the Town of New 
Orleans, and the island in which it is situated, which shall 
remain to France ; provided that the navigations of the Eiver 
Mississippi shall be equally free as well to the subjects of 
G-reat Britain as to those of France, in its whole breadth and 
length from its source to the sea, and expressly that part which 
is between the said Island of New Orleans and the right 
bank of the river, as well as the passage both in and out of 
its mouth. It is further stipulated, that the vessels belonging 
to the subjects of either nation shall not be stopped &c, &c. 

In the negotiations which took place between France and 
G-reat Britain in the year 1761, in reference to the cession of 
of Canada the following propositions were made: — On the 
15th of July, 1761, France proposed : — 

I. The King cedes and guarantees Canada to the King of 
England, such as it has been, and in right, ought to be pos- 
sessed by France, without restriction, and without the liberty 



■220 APPENDIX. 

of returning upon any pretence whatever against this cession 
and guaranty, and without interrupting the Crown of 
England in the entire possession of Canada. 

II. The King in making oyer his full right of Sovereignty 
over Canada to the King of England, annexes four con- 
ditions to the cession. First, that the free exercise of 
the Roman Catholic religion shall be maintained there, and 
that the King of England will give the most precise and 
effectual orders that his new Roman Catholic subjects may, 
as heretofore, make public profession of their religion, accord- 
ing to the rites of the Roman Church. 

Secondly, That the French inhabitants or others, who have 
been subjects of the King in Canada, may retire into the 
French Colonies with all possible freedom and security ; that 
they may be allowed to sell their effects and to transport their 
property as well as their persons, without being restrained 
in their emigration, on any pretence whatever (except for debt) ; 
and the English Government shall engage to procure them the 
means of transportation at as little expense as possible. 

Thirdly, That the limits of Canada, with regard to Louisiana, 
shall be clearly and firmly established, as well as those of 
Louisiana and Virginia, in such manner that after the execu- 
tion of peace there may be no more difficulties between the 
two nations, with respect to the construction of the limits 
with regard to Louisiana, whether with respect to Canada, or 
the other possessions of England. 

N. B. — M. Bussy has'a memorial on the subject of the limits 
of Louisiana, which gives him power to come to a final treaty 
on that article with the Ministry of his Britannic Majesty. 

Fourthly, that the liberty of fishing, and of drying their cod- 
fish may, on the banks of Newfoundland, be confirmed to 
the French as heretofore ; and as this confirmation would be 
illusory, if French vessels had not a shelter in those parts 
appertaining to their nation, the King of Great Britain, in 
consideration of the guaranty of his new conquests, shall 
restore Isle Royal, or Cape Breton, to be enjoyed by France 



APPENDIX. 221 

in entire Sovereignty. It is agreed to fix a value on this 
restitution, that France shall not, under any denomination 
whatever, erect any fortifications on the island, and shall con- 
fine herself to maintain civil establishments there, and the 
port for the convenience of the fishing vessels landing there. 
On the 27th of July 1761, the answer of the British Court to 
the memorial of French propositions was forwarded to Mr. 
Hans Stanley, the English Envoy at Paris. The first two of 
which relate to Canada are the following : — 

I. His Britannic Majesty will never recede from the entire 
and total cession on the part of France, of the Isle of Cape 
Breton, and of all the other Islands in the Grulf or in the Eiver 
of St. Lawrence, with the right of fishing, which is inseparably 
incident to the possession of the aforesaid coasts, and of the 
canals or straits which lead to them. 

II. "With respect to fixing the limits of Louisiana with re- 
gard to Canada, or the English possessions situate on the 
Ohio, as also on the coast of Virginia, it can never be allowed 
that whatever does not belong to Canada shall appertain to 
Louisiana, nor that the boundaries of the last province should 
extend to Virginia, or to the British possessions on the borders 
of the Ohio ; the nations and countries which lie intermediate,, 
and which form the true barriers between the aforesaid pro- 
vinces, not being proper, on any account, to be directly or by 
necessary consequence ceded to France, even admitting them 
to be included in the limits of Louisiana, 

Ultimatum of France in Eeply to that of England,. 

REMITTED TO THE DUC DE ChOISEUL BY Mr. STANLEY. 

I. The King consents to cede Canada m to England the 
most exclusive manner, as specified in the Memorial of Pro- 
positions, but his Majesty will not recede from the conditions 
which he has annexed to the same memoria 1 , relative to the 
Catholic religion, and to the power, facility and liberty of emi- 
gration for the ancient subjects of the King. With regard to 
the Fishery in the G-ulf of St. Lawrence the King means to 



222 APPENDIX. 

maintain the immemorial right which his subjects have of 
fishing in the said Gulf; and of drying their fish on the banks 
of Newfoundland, as it was agreed by the Treaty of Utrecht. 
As this privilege would be granted in vain if the French 
vessels had not some shelter appertaining to France in the 
Gulf, his Majesty proposed to the King of Great Britain the 
restitution of the Island of Cape Breton ; he again proposes 
either that Island of St. John, (Prince Edward's) or such other 
port without fortifications, in the G-ulf or within reach of the 
Gulf, which may serve the French as a shelter, and secure to 
France the liberty of fishing, from whence his Majesty has 
no intention to recede. 

II. The King has, in no part of his Memorial of propositions, 
affirmed that all which did not belong to Canada, appertained 
to Louisiana ; it is even difficult to conceive such an assertion 
could be advanced. France, on the contrary, demands that 
the intermediate nations between Canada and Louisiana, as 
also between Virginia and Louisiana, shall be considered as 
neutral nations, independent of the Sovereignty of the two 
Crowns, and serve as a barrier between them. If the English 
Minister would have attended to the instructions of M . Bussy 
on this subject, he w T ould have seen that France agreed with 
England as to this proposition. 

The Answer of England to the Ultimatum of France, 
11th August, 1761. 

I. The King will not desert his claim to the entire and 
total cession of all Canada and its dependencies, without any 
new limits or exceptions whatsoever ; and likewise insists 
on the complete cession of the Island of Cape Breton and of the 
other Islands in the Gulf and River of St. Lawrence. 

Canada, according to the line of its limits as traced by the 
Marquis de Vaudreuil himself, when that governor surrender- 
ed the said province by capitulation to the British General, 
Sir J. Amherst, coinprehends on one side the lakes Huron, 
Michigan and Superior : and the said line drawn to the Red 



APPENDIX. 223 

Lake takes in, by a serpentine progress, the Eiver Ouabachi, 
(Wabash) as far as its junction with the Ohio, and thence ex- 
tends itself along the latter river as far inclusively as its influx 
into the Mississippi. 

It is in comformity to this state of the limits, made by the 
French G-overnor, that the King claims the cession of Canada, 
a province which the Court of France moreover has offered 
anew by their Ultimatum to cede to his Britannic Majesty, in 
the most extensive manner, as expressed in the Memorial of Pro- 
position of Peace of the 13th July. 

As to what concerns the public profession and exercise of 
the Roman Catholic religion in Canada, the new subjects of 
his Britannic Majesty shall be maintained in that privilege 
without interruption or molestation ; and the French inhabi- 
tants, or others who may have been subjects of the Most 
Christian King in Canada, shall have full liberty and power 
to sell their effects, provided they dispose of them to the sub- 
jects of his Britannic Majesty, and to transport their property, 
as well as their persons, without being restrained from their 
emigration under any pretence whatever (unless in case of 
debt, or for the breach of the criminal laws), it being always 
understood that the time granted for the said emigration 
shali be limited to the space of one year, to be computed from 
the day of the ratification of the Definitive Treaty. 

II. As to what respects the line to be drawn from Rio Per- 
dido, as contained in the note remitted by M. Bussy, of the 
18th of this month, with regard to the limits of Louisiana, his 
Majesty is obliged to reject so unexpected a proposition, as 
by no means admissible, in two respects : 

1. Because the said line, under colour of fixing the limits 
of Louisiana, annexes vast countries to that province which, 
with the commanding posts and forts, the Marquis de 
Yaudreuil has by the most solemn capitulation incontes- 
tably yielded into the possession of his Britannic Majesty, 
under the description of Canada, and that consequently 
however contentious the pretensions of the two Crowns 



224 APPENDIX. 

may have been before the war, and particularly with re- 
spect to the course of the Ohio, and the territories in that 
part since the surrender of Canada, and the line of its 
limits has been traced as aforesaid by the Marquis de 
Vaudreuil ; all those opposite titles are united, and become 
valid without contradiction, to confirm to G-reat Britain, 
with all the rest of Canada, the possession of those coun- 
tries on that part of the Ohio which have been heretofore 
contested. 

2. The line proposed to fix the bounds of Louisiana, can- 
not be admitted, because it would comprise in another part, 
on the side of the Carolinas, very extensive countries and 
numerous nations, which have always been reputed to be 
under the protection of the King, a right which his Majesty 
has no intention of renouncing ; and then the King, for the 
advantage of peace, might consent to leave the intermediate 
countries under the protection of Grreat Britain, and particu- 
larly the Cherokees, the Creeks, the Chicasaws, the Choctaws, 
and another nation, situate between the British settlements 
and the Mississippi. 

The Last Memorial of France to England, 
September 9, 1761. 

I. The King has declared in his first Memorial, and in his 
Ultimatum, That he will cede and guarantee to England the 
possession of Canada, in the most ample manner. His 
Majesty persists in that offer, and without discussing the line 
of its limits marked in a map presented by Mr. Stanley, as 
that line on which England rests its demand, is without 
doubt the most extensive bound which can be given to the 
cession, the King is willing to grant it. 

His Majesty has annexed four conditions to his guaranty ; 
it seems that England agrees to them. The King only con- 
ceives that the term of one year for the sale of the French 
effects, and for the emigration, is too short, and his Majesty 



APPENDIX. 225 

desires that it may be agreed to extend the term of one year 
to eighteen months at least. 

As the Court of England has added to the first article of 
their answer to the entire and total cession of Canada as 
agreed between the two Courts, the word dependencies, it is 
necessary to give a specific explanation of this word, that the 
cession might not in the end occasion difficulties between the 
two Courts with regard to the meaning of the word " de- 
pendencies." 

II. The first paragraph, with respect to the limits of Louisi- 
ana, contained in the second article of the Answer from Eng- 
land, is agreed to by France. The second paragraph is 
neither just nor explicit, and it is finally proposed to express 
it in the following terms : 

The intermediate savage nations between the Lakes and the 
Mississippi, and within the line traced out, shall be neuter and 
independent, under the protection of the King, and those without 
the line on the side of the English, shall be likewise neuter and 
independent, under the protection of the King of England. The 
English traders also shall be prohibited from going among the 
savage nations beyond the line on either side ; but the said nations 
shall not be restrained in their freedom of commerce with the 
French and English as they have exercised it heretofore. * * 
It may be collected from this Memorial that the first Article 
of the English Answer was granted in the full extent which 
the Court of London required ; France only desired eighteen 
months, instead of a year, for the emigration. 

By granting the first part of the second Article, which cedes 
the whole current of the Ohio to England, France proposed in 
regard to the second point of that Article, to agree upon the 
nations which should be reputed neutral between Canada, 
Carolina, and Louisiana. This proposition was the more 
reasonable, because that by agreeing on this division of the 
possession of the two nations, an equitable system was adop- 
ted, discussions about the limits were prevented for the future, 

and France did not incur the risk of losing the colony of 
Q 



226 APPENDIX. 

Louisiana whenever it pleased the Court of London to 
invade it. 

In the Private Memorial of France, of July 15, 1761, Relating 
to Spain, the Due de Ohoiseul proposes that Spain should be 
invited to guarantee the future Treaty of Peace. He says : 
" The King will not disguise from his Majesty that the differ- 
ences of Spain with England fill him with apprehensions, 
and give him room to fear that, if they are not adjusted, they 
will occasion a fresh war in Europe and America. The King 
of Spain has communicated to his Majesty the three Articles 
which remain to be discussed between his Crown and the 
Crown of Britain, which are : 

"1. The restitution of some captures which have been made 
during the present war upon the Spanish Flag. 

" 2. The privilege for the Spanish nation to fish upon the 
Banks of Newfoundland. 

" 3. The demolition of the English settlements made upon 
the Spanish territories in the bay of Honduras." * * * 

Extract from M. Bussy's Note to Mr. Pitt. 

Since the Memorial of the Propositions from France, was 
formed, and at the instant that the courier was ready to set 
out for London, the King received the consent of the 
Empress-Queen to a separate peace with England, but upon 
two conditions : 

1. To keep possession of the countries belonging to the 
King of Prussia. 

2. That it shall be stipulated that the King of Great 
Britain, neither in his capacity of King or Elector, shall afford 
any succour, either in troops or of any kind whatever to the 
King of Prussia ; and that his Britannic Majesty will under- 
take that the Hanovarian, Hessian, Brunswickian and other 
auxiliaries in alliance with Hanover, shall not join the forces 
of the King of Prussia, in like manner as France shall engage 
on her part not to yield succour of any kind to the Empress- 
Queen nor her allies. 



APPENDIX. 227 

Both these conditions appear so natural and equitable in 
themselves, that his Majesty could not do otherwise than 
acquiesce in them, and he hopes that the King of Great 
Britain will be ready to adopt them. 

Extract from Mr. Pitt's Letter to M. Btjssy, 
July 24, 1761. 

* * * It is my duty to declare further to you in plain 
terms, in the name of his Majesty, that he will not suffer the 
disputes with Spain to be blended in any manner whatever 
in the negotiation of peace between the two Crowns ; to 
which I must add, that it will be considered an affront to his 
Majesty's dignity, and as a thing incompatible with the sin- 
cerity of the Negotiation, to make further mention of such a 
circumstance. 

Moreover, it is expected that France will not at any time 
presume a right of intermeddling in such disputes between 
G-reat Britain and Spain. These considerations, so just and 
indispensable, have determined his Majesty to order me to 
return you the Memorial which occasions this, as wholly 
inadmissible. 

I likewise return you, Sir, as totally inadmissible, the Me- 
morial relative to the King of Prussia, as implying an attempt 
upon the honour of G-reat Britain, and the fidelity with which 
his Majesty will always fulfil his engagements with his Allies. 

M. de Yaudreuil to the Due de Choiseul, 
October 30, 1761. 

My Lord, — I was astonished to see, by the historical ac- 
count of the Memorial of the negotiations between France 
and England, what I am charged with by the English, with 
regard to the limits of Canada, as it is entirely false and 
groundless. I shall give your grace a true account of what 
passed between Mr. Amherst and me on that head. When I 
capitulated, 1 traced out no limits whatever, and in all the 
messages that passed between the English General and me, 



228 APPENDIX. 

I made use of the word " Canada" only. Eight or ten days 
after the surrender of the country, he sent an officer to me 
for maps, to inform him of the extent of the colony. I re- 
turned for answer, that I had none, my maps having been 
taken away with my baggage at Quebec, in breach of the ca- 
pitulation of that place ; and the officer then showing me a 
map which he had in his hand, I told him the limits marked 
on it were not just, and verbally mentioned others, extending 
Louisiana on one side, to the carrying place of the Miamis, 
which is the height of the lands, which rivers run into the 
Ouabache ; and on the other, to the head of the Illinois. 

What I have the honour to tell you, my lord, is strictly 
true ; I am not afraid that the English can produce any proof 
of the contrary — for nothing passed in writing, on this head, 
nor was any line drawn on any map. I take the first oppor- 
tunity to acquaint you with this, to prevent any further im- 
position.* 



APPENDIX J. 

Extract from the Charter Granted to M. Crozat, 1712. 
Boundary of Louisiana and Ne^ France. 

In the Grant of Louisiana to Crozat made by Louis XIV., 
in September 1712, he is empowered " to carry on exclusively 
the trade in all our territories by us possessed and bounded 
by New Mexico, and by those of the English in Carolina ; all 
the establishments, ports, harbours, rivers, and especially the 
port and harbour of Dauphin Island, formerly called the 
Massacre Island, and the River St. Louis, formerly called the 
Mississippi, from the sea shore to the Illinois ; together with the 
River St. Philip, formerly called the Missouri river, and the 
St. Jerome, formerly called the Wabash, (the Ohio) with all 
the countries, territories, lakes inland, and the rivers emptying 
directly or indirectly in that part of the River St. Louis. All 

* For an account of the negotiations which led to peace, see Bedford Correspondence^ 
volume 3. 






APPENDIX. ' 229 

the said territories, countries, streams and islands, we will to 
be and remain comprised under the name of the government 
of Louisiana, which shall be dependent on the general government 
of New France, and remain subordinate to it ; and we will 
moreover that all the territories which we possess on this side 
of the Illinois (country) be united, as far as need, to the general 
government of New France, and form a part thereof, reserving 
to ourselves to increase if we think proper, the extent of the 
government of the said country of Louisiana." 

In the Grant made to the Mississippi Company, upon the 
surrender by M. Crozat of his grant, the boundary of Louisi- 
ana was extended northward to the Illinois river, and beyond 
this, I am not aware that, by any act of the French Govern- 
ment, it ever had more extensive limits given to it. 

Mr. Parkman, in his "Discovery of the Great West" says y 
" the boundaries are laid down on the great map of Franque- 
len, made in 1684, and preserved in the Depot des Cartes of 
the Marine. The line runs along the south shore of Lake 
Erie, and thence follows the heads of the streams flowing into 
Lake Michigan. It then runs north-west and is lost in the 
vast unknown of the now British Territories. On the south 
it is drawn by the heads of the streams flowing into the Gulf,, 
as far west as Mobile, after which it follows the shore of the 
Gulf to a little south of the Rio Grande, then runs west, north- 
west, and finally north along the range of the Rocky Moun- 
tains." Note on page 284. This map is obviously founded on 
the Proces Verbal, by which La Salle took possession of the 
Yalley of the Mississippi on behalf of the King of France. 

As a subordinate province carved out of Canada, and made 
dependent upon it, Louisiana could extend no further than 
is expressly stated in the instrument, which gives it a political 
existence. 

It never extended further north than the Illinois. 

The question of the extent of Louisiana was argued at the 
peace of 1762. 

Canada was ceded to Great Britain. 



230 APPENDIX. 

The official maps used by France in her negotiations with 
G-reat Britain incontestibly prove that the country north and 
north-west of the Mississippi was ceded as the "Province of 
Canada, T. Falconer on the North West Boundary ; pp. 87, 88 ; 
Mofias Explorations in Oregon and California ; French's Docu- 
ments relating to the History of Louisiana. 

Extract from Mofras' " California." 

" The treaty recognizing the independence of the United 
States, signed by England in 1782, those of the 20th January 
and 30th September, 1783, as also the treaties of 1794 and 
1795, make no mention in the article, frontiers of the territories 
situated to the west of the Rocky Mountains. The latter only 
stipulates that the possessions of the Hudson's Bay Company 
shall not be accessible to citizens of the United States. Now 
if the boundaries between New France and that Company 
were not clearly defined, even after the treaty of Utrecht in 1713, 
and that of the cession of Canada in 1763, it is undeniable that 
either New France or the possessions of the H. B. Company 
extended as far as the Pacific ocean, and that if the Spaniards 
first explored the north-western coast of America, the French 
first discovered the interior of the continent proceeding from 
the east westwards. All the old maps, in this in accord with 
the most reliable authors, only place the boundary of the 
French possessions in Canada at the Southernsea. L'Escarbot 
who wrote in 1617, among others, states as follows: — Thus 
our New France has for its limits, on the western side the 
lands as far as the sea called the Pacific, on this side the 
Tropic of Cancer ; on the south the islands of the Atlantic sea, 
in the direction of Cuba and the island of Hispaniola ; on the 
east by the Northern sea, which bathes New France, and on 
the north that land called Unknown, towards the icy sea as 
far as the Arctic pole. Lastly, in a map engraved in 1757, and 
attached to the Memorials of the Commissioners of the Kings 
of France and of England in America, in maybe observed 
that New France extended as far as the Pacific Ocean, and 



APPENDIX 231 

it shows on the western coast of America, at the 46th degree a 
large river running in a direction which correspond exactly 
with that of the Rio Columbia. There is, moreover, nothing 
surprising in this specific description since, from 1711 
to 1754, the Captains General of New France sent out 
numerous expeditions to the western part of Canada and 
after thirty years of uninterrupted explorations under the 
enlightened government of the Marquis de Beauharnois ; an 
officer, M de la Verendrye, acquired a thorough knowledge of 
the river and of the western sea, which were no other than 
the Pacific Ocean and the Columbia. 



APPENDIX K. 

Conseil de Marine, 7th December, 1717. 

Messieurs de Yaudreuil and Begon having written last year 
that the discovery of the Western Sea would be advantageous 
to the colony, it was approved that, to reach it M. de Yaudreuil 
should establish three posts, which he had proposed, and he 
was instructed at the same time to have the same established 
without any expense accruing to the King, — as the person 
establishing them would be remunerated by trade, — and to 
send a detailed schedule of the cost of continuing the discov- 
ery. In reply it is stated that M. de Vaudreuil in the month 
of July last caused the Sieur de la Noue, Lieutenant, to set 
out with eight cannon to carry out this scheme of discovery. 
He gave him instructions to establish the first post at the 
River Kamastiquoya, to the north of Lake Superior, after which 
he is to go to Takamamiononio, near the Christianaux Lake to 
establish a second, and to acquire through the Indians the 
information necessary for the establishment of the third at the 
Lake of the Assenipoelles. 

This journey costs the King nothing, because those engaged 
in it will be remunerated for their outlay by the trade which 
they will engage in ; but to follow up the discovery it is abso- 



232 APPENDIX. 

» 

lutely necessary that his Majesty should bear the expense, 
because the persons employed in it will have to give up all 
idea of trade. 

They estimate that 50 good canoemeri (voyageurs) will be 
required ; of these, 24 will occupy the three posts, and the 
26 others will be engaged in making the discovery from the 
lake of Assenipoelles to the Western sea. They calculate the 
wages of these men at 300 francs a year each, and estimate 
that the expenditure as well for provisions and canoes, as for 
goods for presents will amount to /. 29,023 10 

There will have to be added, for supplementary 
outfit, 600 francs for each of the 6 officers employed 
in the discovery 3,600 10 

Total 32,623 20 

As it will take about two years to make this journey, they 
estimate that the expenditure may amount to fifty thousand 
francs.^ 



APPENDIX L. 

McKenzie's General History of the Fur Trade from 
Canada to the North West. 

The Indians, to procure the necessary supply, were encour- 
aged to penetrate into the country, and were generally accom- 
panied by some of the Canadians, who found means to induce 
the remotest tribes of natives to bring the skins which were 
most in demand, to their settlements, in the way of trade, (p. 1.) 

At length, military posts were established at the confluence 
of the different large lakes of Canada, which, in a great 
measure, checked the evil consequences that followed from the 
improper conduct of these foresters, and, at the same time 
protected the trade. Besides, a number of able and respect- 
able men retired from the army, prosecuted the trade in 

•Library of Parliament MSS., 3rd series, vol. 6, pp. 529, 530. 



APPENDIX. 233 

person, under their respective licenses, with great order and 
regularity, and extended it to such a distance, as, in those 
days was considered to be an astonishing effort of commercial 
enterprize. (p. 3.) 

The Missionaries "were, during their mission, of great 
service to the commanders who engaged in those distant ex- 
peditions, and spread the fur trade as far west as the banks 
of the Saskatchewan river, in 53 ° North latitude and long- 
titude 102° west. (pp. 5, 6.) 

But notwithstanding all the restrictions with which com- 
merce was oppressed under the French government, the fur 
trade was extended to the immense distance which has been 
already stated ; and surmounted many most discouraging 
difficulties which will be hereafter noticed ; which at the same 
time, no exertions were made from Hudson's Bay to obtain 
even a share of the trade of a country which, according to the 
charter of that Company, belonged to it, and from its proxi- 
mity, is so much more accessible to the mercantile adventurer, 
(p. 6.) 

For some time after the conquest of Canada, this trade was 
suspended, which must have been very advantageous to the 
Hudson's Bay Company, as all the inhabitants to the west- 
ward of Lake Superior were obliged to go to them for such 
articles as their habitual use had rendered necessary. Some 
of the Canadians who had lived long with them, and were 
becoming attached to a savage life, accompanied them thither 
annually, till mercantile adventurers again appeared from 
their own country, after an interval of several years, owing, 
as I suppose, to an ignorance of the country in the conquerors 
and their want of commercial confidence in the conquered. 
There were, indeed, other discouragements, such as the im- 
mense length of the journey necessary to reach the limits, 
beyond which this commerce must begin ; the risk of property ; 
the expenses attending such a long transport: and an ignor- 
ance of the language of those who from their experience must 
be necessarily employed, as the intermediate agents between 



:234 appendix. 

them and the natives. But notwithstanding these difficulties, 
the trade by degrees began to spread over the different parts 
to which it had been carried by the French, though at a 
great risk of the lives, as well as the property, of their new 
possessors, for the natives had been taught by their former 
allies to entertain hostile dispositions towards the English 
from their having been in alliance with their natural enemies 
the Iroquois ; and there w r ere not wanting a sufficient number 
of discontented, disappointed people to keep alive such a notion; 
so that for a long time they were considered and treated as 
objects of hostility. To prove this disposition of the Indians, 
we have only to refer to the conduct of Pontiac at Detroit, 
and the surprise and taking of Michilimackinac, about this 
period, (p. 7.) 

Hence it arose that it was so late as the year 1766, before 
w r hich the trade I mean to consider commenced at Michili- 
mackinac. The first w T ho attempted it were satisfied to go 
the length of the River Caministiquia, about thirty miles to 
the eastward of the Grand Portage, where the French had a 
principal establishment and was the line of their communi- 
cation with the interior country. It was once destroyed by 
fire. Here they went, and returned successful in the following 
spring to Michilimackinac. Their success induced them to 
renew their journey, and invited others to follow. their exam- 
ple. Some of them remained at Caministiquia, while others 
proceeded to and beyond the G-rand Portage, which since 
that time has become the principal entrepot of that 
trade. * * * 

One of these, Thomas Curry, with a spirit of enterprise 
superior to that of his contemporaries, determined to penetrate 
to the furthest limits of the French discoveries in that coun- 
try ; or at least till the frost should stop him. For this pur- 
pose he procured guides and interpreters who were acquainted 
with the country, and with four canoes arrived at Fort 
Bourbon, which was one of their posts at the west end of 
Cedar Lake, on the waters of the Saskatchewan. His risk 



APPENDIX. 235 

and toil were well recompensed, for he came back the follow- 
ing spring with his canoes filled with fine furs, with which 
he proceeded to Canada and was satisfied never again to return to 
the Indian country, (p. 8.) 

In a few years an animated competition prevailed, and the 
contending parties carried the trade beyond the French lim- 
its, though with no benefit to themselves or neighbours, the 
Hudson's Bay Company, who in the year 1774, and not till 
then, thought proper to move from home to the east bank of 
Sturgeon Lake, in latitude 53° 56' north, and longitude 102° 
15' west, and became more jealous of their fellow- subjects, 
and perhaps with more cause than they had been of those of 
France. From this period to the present time, they have been 
following the Canadians to their different establishments, while, 
on the contrary, there is not a solitary instance that the Canadians 
have followed them ; and there are many trading posts which they 
have not yet attained. This, however, will no longer be a 
mystery, when the nature and policy of the Hudson's Bay 
Company is compared with that which has been pursued by 
their rivals in this trade, (p. 9.) 

Joseph Frobisher, one of the gentlemen engaged in the 
trade, determined to penetrate into the country yet unex- 
plored, to the north and westward, and in the spring of the 
year 1775, met the Indians from that quarter on their way to 
Fort Churchill, at Portage de Traite, so named from the cir- 
cumstance that on the banks of the Mississippi or Churchill 
river, latitude 55° 25 north, longitude 103° 15' west, it was 
with some difficulty that he could induce them to trade with 
him, but he at length procured as many furs as his canoes 
could carry, (p. 11.) 

He sent his brother to explore the country still further 
west, who penetrated as far as the lake Isle d la Croix, in 
latitude 55° 26' north, and longitude 108° west. (p. 12.) 

Peter Pond, as representative of a joint-stock company, 
was directed to enter the English river, so-called by Mr. Fro- 
bisher, to follow his track, and, if possible, to proceed still 



236 APPENDIX. 

further ; if possible, to Athabasca, a country hitherto un- 
known but from Indian report. In this enterprise he at 
length succeeded, and pitched his tents on the banks of the 
Elk river, by him erroneously called Athabasca river, about 30 
miles from the Lake of the Hills, into which it empties itself. 
Here he passed the winter of 1778-9, saw a vast concourse of 
Knistineaux and Chippewyan tribes, who used to carry their 
furs annually to Churchill, the latter by the barren grounds, 
where they suffered innumerable hardships, and were some- 
times even starved to death. * * * 

Mr. Pond's reception and success were beyond his expecta- 
tion ; and he procured twice as many furs as his canoes 
would carry. They also supplied him with as much provi- 
sion as he required during his residence among them, and 
sufficient for his homeward voyage. Such of the furs as he 
could not embark, he secured in one of his winter huts, and 
they were found the following season, in the same state in 
which he left them. 

The improper conduct of some of the Canada traders made 
it dangerous to remain among the natives. Those who 
passed the winter at the Saskatchewan, got to the Eagle Hills, 
where, in the spring of 1780, a few days previous to their in- 
tended departure, a dose of laudanum was given to an 
Indian, from which he died; the accident produced a fray in 
which one of the traders and several of the men were killed, 
and the remainder saved themselves by precipitate flight, 
(p. 13.) 

Pond tried at Montreal, 1781, for the murder of Wodin, 
who was shot in the latter part of 1780. Murder high up 
the Mississippi, or English river, at Lake La Rouge, (p. 10.) 
Wodin was a Swiss gentleman, of strict probity and known 
sobriety. 

In 1781-2, Canadians, who were much reduced in number, 
became confined to two parties, who began to think seriously 
of making permanent establishments in the country on the 
Mississippi river, and at Athabasca. For this purpose, they 



APPENDIX. 237 

selected their best canoe-men. They got to the portage be- 
tween the Mississippi and Elk rivers. Found small-pox 
everywhere. Grot but seven packages of beaver. Traders 
returned next year, found things better, (p. 17.) 

Merchants in 1783-4 formed the N. W. Company, divided 
the stock into 16 shares. No capital was deposited. In the 
spring, two of the shareholders went to G-rand Portage with 
their credentials, which were confirmed and ratified by all 
parties except Mr. Peter Pond, who was not satisfied with the 
share allotted him. Accordingly, he and another gentleman, 
Peter Pangman, who had a right to be a partner, but for whom 
no provision was made, came to Canada with a determination 
to return to the country, if they could find any person to 
join them and give their scheme a proper support. 

The traders in the country, and merchants in Montreal, en- 
tered into a co-partnership ; successful. Pond joined them ; 
but Pangman, Gregory and Macleod formed a separate busi- 
ness. 

McKenzie was five years in Gregory's counting-house. Set 
up then for himself at Detroit. Admitted a partner, and sent 
to the Indian country. After the murder of one of our part- 
ners, the laming of another, and the narrow escape of one of 
the clerks, who received a bullet through his powder-horn, in 
the execution of his duty, union in July, 1787, consisted of 22 
shares. 

In 1788, gross adventure for the year, =£40,000. 

In 1798, the number of shares was increased to 42. 

The French had several trading establishments upon the 
islands and banks of Lake Bois Blanc, before the conquest, 
(p. 53.) 

The French had several settlements in and about Lake du 
Bois. (p. 57.) 

Lake du Bois — latitude 49° 37', longitude 94° 31' ; Mississippi 
—latitude 47° 38', longitude 95° 6'. (p. 58.) 

On the Saskatchewan are three principal forts for trade — 
Fort Dauphin, which was established by the French, before 



238 APPENDIX. 

the conquest, Bed Deer river and Swan river forts, with oc- 
casional detached posts from these. The inhabitants are 
Knistineaux, from the north of Lake Winnipic ; and Algon- 
quins, from the country between Red River and Lake Supe- 
rior, (p. 65.) 

Upon the Saskatchewan there are five principal factories 
for the convenience of the trade with the natives. Nipawi 
House, South Branch House, Fort George House, Fort Augus- 
tas House and Upper Establishment, (p. 69.) There have 
been many others, which for various causes have been 
changed for these. 

It may be proper to observe that the French had two settle- 
ments upon the Saskatchewan long before, and at the con- 
quest of Canada — the first at the Pasquin, near Carrot river, 
and the other at Nipawi, where they had agricultural instru- 
ments and wheel-carriages, marks of both being found about 
those establishments, where the soil is excellent, (p. 73.) 

Till the year 1782, the people of Athabasca sent or carried 
their furs regularly to Fort Churchill, Hudson's Bay ; some 
of them have since that time repaired thither, notwithstand- 
ing they could have provided themselves with all the neces- 
saries which they required * * * At present, however, 
this traffic is in a great measure discontinued. * * (p. 91.) 

Carver's Travels. 

The latter end of July I arrived, after having coasted 
through West Bay, at the Grand Portage, which lies on the 
north-west borders of Lake Superior. Here those who go on 
the North West Trade, to the Lakes DePluye, Dubois, &c, 
carry over their canoes and luggage about nine miles, till they 
come to a number of small lakes, the waters of some of which 
descend into Lake Superior, and others into the River Bourbon. 
Lake Superior from West Bay is bounded by rocks, except to- 
wards the south-west part of the bay where I first entered it, 
there it was tolerably level. * * * 

Here I met a large party of Killistinoe and Assinipoil 



APPENDIX. 2S9' 

Indians, with their respective kings and their families. They 
will come to this place in order to meet the traders from 
Michillimackinac,who make this their road to the North West. 
From them I received the following account of the Lakes 
that lie to the north west of Lake Superior. 

Lake Bourbon, the most northern of those yet discovered, 
received its name from the French traders who accompanied 
a party of Indians to Hudson's Bay some years ago ; and was 
thus denominated by them in honour of the Royal Family of 
France. It is composed of the waters of the Bourbon river, 
which, as I have before observed, rises a great way to the 
southward, not far from the northern heads of the Mississippi. 
This lake is about 80 miles in length, north and south, and is 
nearly circular. The land on the eastern side is very good ; 
and to the south-west there are some mountains. In many other 
parts there are barren plains, bogs, and morasses. Its latitudeis 
between fifty-two and fifty-four degrees north, and it lies 
nearly south-west from Hudson's Bay. As through its north- 
ern situation the weather there is extremely cold, only a few ani- 
mals are to be found in the country that borders on it. * * * 
(p. 107.) 

Lake Winnipeck, or as the French write it, Lake Ouinipique, 
which lies nearest to the foregoing, is composed of the same 
waters. It is in length 200 miles, north and south ; its breadth 
has never been properly ascertained, but is supposed to be 
about 100 miles in its widest part. This lake is very full of 
islands; these are, however of no great magnitude. Many 
considerable rivers empty themselves into it, which, as yet, are 
not distinguished by any names. * * * 

The lands on the south-west part of it is very good, especially 
about the entrance of a large branch of the River Bourbon,. 
(Assiniboine), which flows from the south-west. On this 
river there is a factory that was built by the French, called 
Fort La Reine, to which the traders from Michilimackinac 
resort to trade with the Assinipoils and Killistinoes. To this 
place the Mahahs who inhabit a country 250 miles south-west, 



240 APPENDIX. 

come also to trade with them; and bring great quantities of 
Indian corn to exchange for knives tomahawks, and other 
articles. * * * 

Lake Winnepeck has on the north-east some mountains and 
on the east many barren plains, (p. 109.) 

On the waters that fall into this Lake, the neighbouring 
nations take great numbers of excellent furs. Some of these 
they carry to the factories and settlements belonging to Hud- 
son's Bay Company, situated above the entrance of the Bourbon 
river ; but this they do with reluctance on several accounts ; 
for some of the Assinipoils and Killistinoes, who usually 
traded with the Company's servants, told me that if they 
could be sure of a constant supply of goods from Michillimacki- 
nac, they would not trade anywhere else. They shewed me 
some cloth and other articles that they had purchased at 
Hudson's Bay, with which they were much dissatisfied, 
thinking that they had been greatly imposed upon by the 
barter. 

Allowing that their accounts w r ere true, I could not help 
joining in their opinion. But this dissatisfaction might proba- 
bly proceed, in a great measure, from the intrigues of the 
Canadian traders ; for whilst the French were in possession of 
Michillimackinac, having acquired a thorough knowledge 
of the trade of the north-west countries they w T ere employed 
on that account, after the reduction of Canada, by the English 
traders there, in the establishment of this trade, with which 
they were themselves quite unacquainted. One of the methods 
they took to withdraw these Indians from their attachment 
to the Hudson's Bay Company, and to engage their good 
opinion in behalf of their new employers, was by depreciating 
on all occasions the Company's goods, and magnifying the 
advantages that would arise to them from trafficking entirely 
with the Canadian traders. In this they too well succeeded, 
and from this, doubtless, did the dissatisfaction the Assinipoils 
and Killistinoes expressed partly proceed. But another reason 
augmented it, and this was the length of their journey to the 



APPENDIX. 241 

Hudson's Bay factories, which, they informed me, took them 
up three months of the summer heat to go and return, and 
from the smallness of their canoes they could not carry more 
than a third of the beavers they killed. So that it is not to be 
wondered at, that these Indians should wish to have traders 
come and reside among them. # # # 

The French always kept a small schooner on Lake Superior 
whilst they were in possession of Canada, (p. 134.) 

Two very large rivers empty themselves into this Lake on 
the north and east side : one is called the Nipegon river, or, 
as the French pronounce it, the Allanipegon, which leads to a 
band of the Chipeways, inhabiting a lake of the same name ; 
and the other is termed the Michipicooton river, the source 
of which is situated towards James' Bay, from whence there 
is but a short carriage to another river, which empties itself 
into that bay, at a fort belonging to the Company. It was by 
this passage that a party of French from Michillimackinac in- 
vaded the settlements of that society in the reign of Queen 
Anne. Having taken and destroyed their forts, they brought 
the cannon which they found in them to the fortress from 
whence they had issued ; these were small brass pieces, and 
remain there to this present time. (p. 137.) 

At the upper end of the Straits of Ste. Marie stands a fort 
that receives its name from them, commanded by Mons. Cadot, 
a French Canadian, who, being proprietor of the soil, is still 
permitted to keep possession of it. (p. 141.) 

The banks of the River Detroit, both above and below these 
towns, are covered with settlements, that extend more than 
twenty miles; the country being exceedingly fruitful and 
proper for the cultivation of wheat, Indian corn, oats and 
peas. The inhabitants, who are chiefly French that submitted 
to the English Government, after the conquest of these parts 
by General Amherst, are more attentive to the Indian trade 
than to farming. It is badly cultivated, (p. 151.) 



R 



242 APPENDIX. 

APPENDIX M. 

(N. Y. Hist Col, Vol. 10.) 

Paris Documents, IX. 

Extract from an Abstract, in form of a Journal of the most 
interesting occurrences in the Colony, in reference to mili- 
tary movements, and of the various intelligence received, 
since the departure of the ships in November, 1746. 

(Page 117 of the N. Y. Hist, Col) 

August 13. — Captain de Noyelle and Sieur de La Veren- 
drye arrive from Michillimackinac, and deliver to the G-eneral 
a letter dated at that post, on the 23rd July, and addressed to 
him by Sieur de Noyelle, junr., commanding, in the absence 
of Mr. de La Corne, senior, and by other officers, who arrived 
from the upper posts, and happened to be then at Michilli- 
mackinac. 

The G-eneral is informed by this letter of the confusion that 
prevails among all the nations of that post and neighbourhood, 
Outaouais, Sauteurs and Mississagues. The Outaouacs of Sagui- 
nam have killed three Frenchmen who were coming from 
Detroit to Michillimackinac. Two French canoes which had 
gone en prime from Montreal to the West Sea,^ have been 
attacked by the Sauteurs, about the place called La Cloche,t 
near Lake Michigan ; one, containing eight men, has been 
wholly defeated ; the second, by striking out into the Lake 
and throwing its cargo overboard, escaped to Michillimackinac. 
Another Frenchman has been stabbed by the Sauteurs at a 
place called La Grrosse Isle, % only two leagues distant from the 
post. These Indians have offered divers insults and threats 

* La mer de l'Ouest. In Carver's Map, the head of Lake Superior is called the 
West Bay. 

t An Island north of the Great Manitoulin, in Lake Huron. 

X An Island immediately north of Mackinaw Island ; map of St. Mary's Straits, in 
Charlevoix, id. 



APPENDIX. 243 

at the fort, and in the vicinity ; they killed all the horses and 
other cattle that they could not catch ; they designed to sur- 
prise the fort, but were discovered and obliged to leave, by 
ringing the bell and beating the tap-too, as usual, and even 
by making some defensive demonstrations. There had been 
greater reason for presuming bad intentions on the part of the 
Indians, inasmuch as a crowd of young men had armed 
themselves with knives, in a council which had been held 
at their request, on the 3rd July, and which terminated in 
recrimination. The Indians have not been permitted to enter 
the fort, except under certain restrictions. Some Frenchmen 
from Point Chagouamigon, and Mr. de Noyelle, senr., on his 
usual return from the West Sea, arrived a few days after. 
Certain intelligence had also been received there from Detroit. 
This reinforcement will somewhat tranquillize the fort, which 
contained, before their arrival, only twenty-eight men. An 
Outaouas Indian, named Neguiouamin, arrived on the 2nd 
July at the post, to communicate in secret to the Commandant 
and the Missionary that the Iroquois, the Huron and the Flat- 
head, had come to an understanding with the English to destroy 
the French and drive them to the other side of the Sea ; that 
the Outaouais of Detroit is in the plot ; that the Poutouatami 
will co-operate; that the Mississagues andSauteurs are gained 
over ; that the Outaouac of Saguinam has already struck ; 
that the Outaouas of Michillimackinac would have taken 
part against us had it not been for the portion of the village 
which is at Montreal, and that they would yet possibly declare 
against us on the arrival of seventy men from Saguinam, who 
are to be reinforced by the Sauteurs of G-rosse Isle; that 
they were to leave in a few days, and to come in the night to 
speak to the Outaouas of the post, and that it were well to 
allow no person to go hunting, and to keep strict watch. Mr. 
de Noyelle, junr., adds that he will detain, until further orders, 
a1 Michillimackinac. the canoes which were to come from 
Montreal to the different posts, unless afTairs changed, and it 
became certain that the dispositions of the Indians at those 



244 APPENDIX. 

posts were altered. We are co-operating in the adoption of 
the most effectual measures, either to restore tranquillity at the 
post of Michillimackinac, or at least to place it in a proper state 
of defence against all attacks of the Indians. 

(Page 129 of N. Y. Hist. Col, Yol. 10.) 

October 14th. — Sieur Masse, who has been the whole year at 
Cape Chat, has returned. 

We received letters from Michillimackinac informing us of 
the arrival of Chevalier de La Yerendrye, who has found that 
post very quiet ; the Outaouacs are beginning to be sorry for 
what occurred last year. 



Paris Documents, X. 

Occurrences in Canada during the year 1747-8. 

Extract of whatever occurred of interest at Quebec in re- 
gard to the operations of the war, and the various intelli- 
gence received there since the sailing of the ships in No- 
vember, 1747. 

(Page 137. News from Michillimackinac.) 

Nov. 10. — We are in receipt of letters from Michillimacki- 
nac. Lieutenant de St. Pierre, who had been selected to 
command the convoy sent to that post, arrived there, without 
any accident, in 45 days. Captain de Yercheres, appointed 
Commandant at the Bay,* and who was to remain at Michilli- 
mackinac with his traders from Montreal, had taken his de- 
parture thence for his post, with his voyageurs. Mr. de St. 
Pierre writes us on October 22nd that he has not been able to 
speak to the Indians, who were, when he arrived, all gone to 
their winter quarters, without having given any token of 
their repentance for the outrage they had perpetrated. It is, 
hence, to be presumed that they persist in their evil disposi- 

* Green Bay. 



APPENDIX. 245 

tions ; that the Marquis de Beauharnois' order, sent with 
Sieur de* La Yerendrye, in the month of August, has been 
badly executed ; that 'twas the only means of reducing those 
nations ; that he does not anticipate success otherwise than 
by depriving them of the supplies they derive for the support 
of their families, and which they cannot dispense with. This 
might have been effected, were the traders prevented going 
to the different posts, according to the Marquis de Beauhar- 
nois' intentions ; and this officer takes this occasion of saying, 
that it would be well not to allow the canoes to leave Mon- 
treal next spring for Michillimackinac and other posts, until 
he have informed us of the sentiments in which the nations 
of that country will then be, and as soon as he shall have 
learned their intentions, he will take occasion to report them 
to us. 



Paris Documents, X. 
Extracts from a letter from M. de Berthet, Commandant 
at the Illinois, to Sieur Lachine, trader at the Ourfatanons, 
dated Cahos, 20th October, 1747, whereof he sends us a copy. 

(Page 154. N. Y. Hist Col., Vol. 10.) 
Sieur de La Yerendrye. 

March 29. — -Sieur de La Yerendrye, junr., has returned to 
Montreal with the Cristinaux and other warriors of his party. 
In the neighbourhood of Oorlac he fell in with a party of 
Mohawks and Dutchmen, who were coming to Sarastan, on a 
scouting party. He brought two Mohawk scalps, among 
which is that of the principal chief of that nation ; one of a 
Dutchman, and a Dutch prisoner, who reports nothing of in- 
terest — only says that there is considerable talk about peace. 
This first blow on the Mohawks will not fail to frighten them. 

(Page 167. N. Y. Hist. Col, Yol. 10.) 
Convoy to Michillimackinac. 
June 20. — Count de la Galissoniere orders the despatch 
from Montreal of the convoy for Michillimackinac, under the 



246 APPENDIX. 

command of Lieutenant de St. Vincent. This convey is well 
escorted and sufficiently well provided with provisions and 
merchandise to supply the post abundantly. The G-eneral 
writes to Lieutenant de St. Pierre, Commandant there, that 
the convoy was delayed in the hope of receiving news from 
Michillimackinac, but that the advanced season obliged him to 
order its dispatch, though he is uninformed of what is passing 
at that post ; that should the troubles continue, nothing re- 
mains to be done than to abandon, as already proposed, those 
posts which are exposed to danger, in order to oblige the 
guilty to come to Michillimackinac, and even to Montreal, in 
search of what they want ; that he must exact the surrender 
of the murderers, and, should circumstances force him, grant 
peace on the same conditions as those accorded to the Hurons 
of Detroit, who were to bring two English prisoners for everv 
Frenchman they had killed ; the promises must, first of all, 
be performed, in order that these nations may not betray us, 
as the Hurons have done. The General leaves this officer at 
liberty to determine, according to circ. instances, the carrying 
into execution the different licenses granted for the northern 
posts, and observes to him, nevertheless, in regard to the West 
Sea and Nipigon, that in case these posts were abandoned, it 
would be to be feared that the English might irretrievably 
monopolise the entire of that trade which they now share 
with sufficient advantage. Demand some Panis, in, order to 
indemnify the Indians who have surrendered some English 
prisoners. 

Ensigns Laronde and Chevalier de La Yerendrye have also 
taken their departure ; the first for Point Chagouamigon, and 
the second for the West Sea. 



APPENDIX. 247 

APPENDIX N. 
Sir George E. Cartier and Mr. McDougall to Sir F. Rogers. 

Westminster Palace Hotel, London, 
January 16, 1869. 

Sir, — We have the honour to acknowledge receipt of your 
letter of the 30th ult. (with its enclosures), stating that you 
were directed by Earl Granville to transmit to us a copy of a 
letter which his lordship had received from the Deputy- 
Chairman of the Hudson's Bay Company, relating to some 
steps which have been taken under the authority of the 
Canadian Government, and from which the Company appre- 
hend some invasion of their territorial rights. 

You inform us that his lordship will be glad to receive 
from us any explanation which we may be able to furnish 
him, of the steps taken by the Canadian Government. 

We have read the letter of the Deputy-Chairman, and ex- 
tracts from the letters of Governor McTavish, and have 
much pleasure in being able to furnish his lordship with what 
we hope will prove satisfactory information on the subject of 
the Hudson's Bay Company's complaint. 

1. In the month of September last, very precise informa- 
tion reached the Canadian Government that, in consequence 
of the complete destruction of their crops by locusts, the 
people of the Red River Settlement, numbering probably 
from 12,000 to 15,000 souls, were in imminent danger of star- 
vation during the winter about to set in. 

2. Numerous and earnest appeals for aid had already been 
made to the Canadian public by writers in the newspapers, 
and by clergymen and others acquainted with the country. 
The Right Reverend Robert Machray, Lord Bishop of Ru- 
pert's Land, a member of the Council of Assiniboia, and so 
far a representative of the Company, visited Ottawa, and 
urged upon members of the Canadian Government the duty 
of prompt assistance to avert the threatened calamity. 



248 APPENDIX. 

3. No steps had been taken (so far as the Government 
could learn) by the Hudson's Bay Company to provide sup- 
plies, and aware that a few days' delay at that season might 
render it impossible to get provisions to Red river in time to 
afford relief, the Canadian Government appropriated the sum 
of twenty thousand dollars ($20,000) towards the construc- 
tion of a road from Lake of the Woods to Fort G-arry. The 
Minister of Public Works (one of the undersigned) was di- 
rected to expend the principal part of this sum in the pur- 
chase of provisions, which were to be forwarded with all 
possible despatch to the Red River Settlement, and offered to 
the settlers, not as alms, but in exchange for their labour on a 
public work in their own vicinity, and of the highest utility 
to their settlement. 

4. A confidential and experienced agent proceeded at once 
to St. Paul's, Minnesota, and succeeded in forwarding a con- 
siderable supply of provisions before the close of navigation. 
A further quantity had reached Fort Abercrombie, an Ameri- 
can post in Dakota territory, from which point it can be sent 
to the settlement early in the spring. 

5. Information has reached the undersigned since their 
arrival in England, that the Government Agent had, in ac- 
cordance with his instructions, conferred with the local autho- 
rities on his arrival at Fort Garry ; that he had received their 
approval and promise of assistance ; that his timely aid was 
a cause of much joy and thankfulness in the settlement ; and 
that he had proceeded with a large force of labourers to the 
limit of the prairie country, some thirty miles from Fort 
Garry, towards Lake of the Woods, and had there com- 
menced the construction of the road. 

6. The immediate object of the Canadian Government in 
taking the steps complained of, was to supply food to a starv- 
ing community about to be imprisoned for six months in the 
heart of a great wilderness, without roads or means of com- 
munication with their fellow-subjects, and to supply it in the 
way most acceptable to a high-spirited people, viz., in ex- 






APPENDIX. 249 

change for their labour. It was thought that even the Hud- 
son's Bay Company might look with favour upon a public 
work which, when completed, will prove a valuable protec- 
tion to those under their government, against similar dangers 
in the future. On behalf of the Canadian G-overnment, we 
deny that a " trespass" has been committed, or that our action 
in this matter was intended to forestall or embarrass negotia- 
tions, which the Imperial Parliament had directed to be un- 
dertaken for the transfer of the North- Western territories and 
Rupert's Land to the Dominion of Canada. 

The foregoing explanation may perhaps be deemed suffi- 
cient to enable Earl G-ranville to answer the complaint of the 
Hudson's Bay Company against the Canadian G-overnment ; 
but the undersigned beg leave to add one or two observations 
which, in their opinion, this extraordinary demand for the 
" intervention of her Majesty's G-overnment," both invites 
and justifies. If the Hudson's Bay Company, who claim the 
right to hold and govern the territory in which the alleged 
" trespass" has taken place, had performed the first duty of a 
government towards its people, by providing them with easy 
means of communication with the outer world, or if they had 
shown themselves either able or willing to meet the threat- 
ened calamity by a prompt eifort to forward sufficient sup- 
plies to the settlement before the close of navigation, the 
Canadian G-overnment would have rested happy in the belief 
that neither humanity nor public policy required or justified 
their interference. 

The assertion of the Deputy-Groveraor of the Hudson's 
Bay Company, that the country between Lake of the Woods 
and Red river is " the freehold territory of the Company," 
and that the so-called " trespass" of the Canadian G-overn- 
ment in sending provisions to the starving settlers, and assist- 
ing them to make a road for their own convenience and safety 
hereafter, is " an actual encroachment on the soil of the Com- 
pany," might, if unnoticed by us, be claimed as another proof 
or admission of the rights of the Company in that part of the 



250 APPENDIX. 

continent. We, therefore, beg to remind his lordship that 
the boundaries of Upper Canada on the north and west, were 
declared, under the authority of the Constitutional Act of 
1791, to include " all the territory to the westward and south- 
ward" of the " boundary line of Hudson's Bay, to the utmost 
extent of the country commonly called or known by the name 
of Canada." Whatever doubt may exist as to the " utmost 
extent" of old, or French Canada, no impartial investigator of 
the evidence in the case can doubt that it extended to, and 
included, the country between Lake of the "Woods and Red 
river. 

The Government of Canada, therefore, does not admit, but, 
on the contrary, denies, and has always denied, the preten- 
sions of the Hudson's Bay Company to any right of soil 
beyond that of squatters, in the territory through which the 
road complained of is being constructed. 
We have, &c, 

(Signed) G. E. Cartier. 

Wm. McDougall. 
Sir Frederic Rogers, Bart., &c, 

Colonial Office. 



Letter from Sir Stafford H. Northcote to Sir Frederic Rogers, Bart. 

Hudson's Bay House, London, 
February 2nd, 1869. 

Sir, — I have the honour to acknowledge your letter of the 
28th January, addressed to the Deputy-Governor of this Com- 
pany, enclosing a communication from Sir G. Cartier and Mr. 
McDougall, on the subject of the recent proceedings of the 
Canadian Government in the matter of the construction of a 
road through the Company's territory between Fort Garry 
and the Lake of the Woods. 

After the distinct statement contained in Sir Curtis Lamp- 
son's letter of the 22nd December, that the Company, while 



APPENDIX. 251 

protesting against a trespass on their land, were prepared 
favourably to entertain any application for permission to make 
such a road, either on the part of the Imperial or of the Cana- 
dian Government, the Committee think it unnecessary to dis- 
cuss the greater portion of the letter of the Canadian Minis- 
ters. Their objection is not to the road being made, but to 
its being undertaken by the Canadian Government as a mat- 
ter of right, as though the territory through which it is to 
pass were Canadian. Such a step, taken at a moment when 
negotiations are in progress for the transfer of the Company's 
possessions to Canada, and taken by a G-overnment which 
openly disputes their title to this portion of them, could not 
have been allowed to pass unchallenged without derogating 
from the Company's rights. The Canadian Government 
themselves seem to have been alive to this. Mr. McTavish 
states that the agent of that Government (Mr. Snow), on arri- 
ving at the Red river, communicated to him his instructions 
from the Commissioner of Public Works in Canada, contain- 
ing the expression of " a hope on the part of the Commis- 
sioner, that the Company's Agent here would offer no opposi- 
tion to Mr. Snow's operations, but would leave the matter en- 
tirely in the hands of the Imperial Government." Governor 
McTavish, upon this, very properly allowed Mr. Snow to 
commence his operations ; and so far as this Company is con- 
cerned, no impediment has been, or will be, offered to the 
prosecution of the work. 

If it were worth while to discuss that part of the letter of 
the Canadian Ministers which refers to the circumstances 
under which the construction of the road was ordered, the 
Committee would be able to show that the Company had in 
no way failed in their duty to the Colony ; but that they had 
promptly taken measures for the relief of its inhabitants, and 
had supplied large sums, both by direct grants and by sub- 
scriptions raised under their auspices for that purpose, at a 
period anterior to the appropriation of the Canadian road- 
grant. They would also be able to point out how the delay 



252 APPENDIX. 

which has occurred in opening up communications and other- 
wise developing the resources of the Red River Settlement, 
is due to the restraint which has been imposed upon them by 
her Majesty's G-overnment, at the request of Canada, and 
not to any negligence or indifference of their own. 

But the Committee desire to avoid the raising of a false 
issue, and they accordingly instruct me to re-state to Earl 
Granville the precise complaint which they have to make. It 
is this : that while negotiations are going on for the acquisi- 
tion of their territory by Canada, the Canadian Government 
are endeavouring to exercise rights of ownership over a por- 
tion of that territory, to the exclusion of the Company, and to 
the prejudice of their title. This they are doing by virtue of 
an old claim which they have repeatedly advanced, which the 
Company have invariably disputed, and have declared them- 
selves ready to contest before a court of law, and which her 
Majesty's Government, acting under the advice of various 
Law Officers of the Crown, have declined to endorse. 

The Canadian G-overnment have hitherto shown no incli- 
nation to bring their claim to the test of a judicial decision, 
and in the absence of any such decision, the Committee con- 
sider it not unreasonable to ask that due respect should be 
paid by the Company's uninterrupted possession of the terri- 
tory for two centuries, and to the numerous and weighty 
legal opinions which have from time to time been given in 
their favour. 

In appealing to Earl Granville for support in this matter, 
instead of entering into a controversy with Canada, or taking 
legal steps to enforce the Company's rights, the Committee 
have been actuated by a desire to proceed as far as possible in 
accordance with the views and wishes of her Majesty's G-ov- 
ernment, as they have endeavoured to do throughout the 
pending negotiations for the establishment of a settled form 
of Government at the Red river. They desire now respect- 
fully, but confidently, to claim the support and protection of 
the Colonial Minister against any invasion of the Company's 



APPENDIX. 253 

rights which may have been prompted or facilitated by the 

policy which they have adopted in order to meet the wishes 

of the Colonial Office. 

I have, &c, 

Stafford H. Northcote. 
Sir Frederic Rogers, Bart. 



Sir & Northcote to Sir F. Rogers. 

Hudson's Bay House, London, 
January 13th, 1869. 

Sir,— I have the honour to acquaint you, for the informa- 
tion of Earl Granville, that I was elected by the shareholders 
of this Company, on Tuesday, the 5th instant, to the office of 
Governor, vacant by the resignation of the Earl of Kimberley. 

It now becomes my duty to address you in reply to Mr. 
Adderley's letter, dated the 1st December, 1868, which was re- 
ceived by my predecessor on the eve of his resignation, and 
to which, in consequence of that event, the Committee have 
not been able to send an earlier answer. 

Before making any observations upon the particular topics 
discussed in Mr. Adderley's letter, I am desired by the Com- 
mittee to assure Lord G-ranville that they continue sincerely 
anxious to promote the object with a view to which this Com- 
pany was reconstructed five-and-a-half years ago, viz., the 
gradual settlement of such portions of their territory as 
admit of colonization ; that they adhere to the opinion ex- 
pressed in their resolution of the 28th August, 1863, viz., that 
the time has come when it is expedient that the authority, 
executive and judicial, over the Red Eiver Settlement and the 
south-western portion of Rupert's Land, should be vested in 
officers deriving such authority directly from the Crown ; and 
that they cheerfully accept the decision of her Majesty's Gov- 
ernment, communicated to them in Mr. Adderley's letter of 
the 23rd April, L868, viz., that the whole of the Company's 
territory should, under proper conditions, be united with the 



254 APPENDIX.* 

Dominion of Canada, and placed under the authority of the 
Canadian Parliament. 

Acting in accordance with the wish of her Majesty's Gov- 
ernment as conveyed to them in Mr. Elliott's letter of the 
23rd January. 1867, the Committee have declined to encou- 
rage overtures which have been made to them by private 
persons for the purchase of portions of the Company's terri- 
tary with a view to their colonization, and have kept the 
whole question in abeyance during the time that the negotia- 
tions which have led to the confederation of the British Pro- 
vinces constituting the Dominion of Canada, were proceeding. 
In the whole of that time they have taken no step which 
could give rise to fresh complications, or could place any new 
difficulty in the way of the admission of their territory into 
the confederation when the proper moment should arrive ; 
and when they were informed by Mr. Adderley's letter of the 
23rd of April, that the Parliament of Canada had addressed 
her Majesty upon this subject, and were requested to state 
the terms which the Company would be prepared to accept, 
proceeding on the principle adopted in the interrupted nego- 
tiation of 1864, they unhesitatingly complied with the desire 
of the Government. 

It is therefore with surprise, as well as with regret, that 
they have learnt from the letter now under reply that the 
terms proposed by them, even when most strictly in conform- 
ity with the principles adopted in 1864, are considered by her 
Majesty's Government to be inadmissible, and not to afford 
much prospect of an arrangement being come to. They find, for 
m stance, that the stipulation that the Company should receive 
one shilling per acre on lands hereafter sold, which was origi- 
nally suggested to the Committee by His Grace the late Duke 
of Newcastle, in Mr. Fortescue's letter of March 11th, 1 864, and 
which has never hitherto been called in question, is the first 
point to which exception is now taken. Objections are also 
raised against several other proposals which have been long 
before the Government, while no notice at all is taken of 



APPENDIX. 25£ 

some which have been made for the first time with a view to 
the protection of the Company's trade, and with regard to 
which the Committee are left in ignorance whether they are 
considered admissible or not. 

The Committee, although somewhat embarrassed by this 
apparent change in the spirit of the correspondence, desire 
me, however, to make the following observations upon some 
of the remarks contained in Mr. Adderley's letter, in order 
that there may be no misapprehension as to the bearing of 
their proposals : 

The Committee are aware that, as is stated in Mr. Adderley's 
letter, in order to prepare the country for settlement, very 
considerable annual outlay will have to be incurred, and that 
for this charge, the produce of the early sales of lands is the 
natural resource ; but they are at a loss to understand upon 
what ground it is alleged that their proposals would deprive 
the future Government of the ceded territory of " any pros- 
pect " for a long time at least " of receiving any income." 

The only part of the territory in which it is probable that 
any early or extensive settlement will take place, is the part 
known as the Fertile Belt. It has been confidently asserted 
by independent persons who have travelled through the 
country, that a great part of this land is not inferior in quality, 
or in advantages of climate, to the adjoining United States 
territory now forming the State of Minnesota, and it has been 
justly pointed out that, being prairie land, it does not require 
much labour to render it fit for cultivation. But the price of 
land in Minnesota ranges, as the Committee are informed, 
from five shillings to one pound per acre. The Committee 
think, therefore, that the fixed payment of one shilling per 
acre, proposed by the Duke of Newcastle, and accepted by 
them as a basis of compensation, cannot be deemed to be 
unreasonable in so far as related to land sold within the limits 
set forth ki Sir Edmund Head's letter of the 11th of Novem- 
ber, 1863. 

As regards any portions of land lying outside those limits 



256 APPENDIX. 

which may possibly be sold, the Committee think it very im- 
probable that such sales will take place except for mining 
purposes, in which case the payment of a shilling per acre 
could hardly be deemed excessive. In order to save trouble 
and to obviate disputes, therefore, the Committee proposed the 
fixed payment of one shilling per acre in respect of all sales 
wherever they may take place, and they believe that the 
arrangement would have been, on the whole, more favourable 
to Canada than that suggested by Mr. Adderley. 

Mr. Adderley proceeds to remark with reference to Lord 
Kimberley's proposal, that the Company should retain certain 
reserves around their posts; that the reservations would 
amount to upwards of 500,000 acres. It was however stated 
by Lord Kimberley and the Deputy-Governor, at an interview 
with the Duke of Buckingham upon this subject, that the Com- 
mittee were willing to confine their claim for reserves to the 
limits defined by Sir Edmund Head's letter of the 11th No- 
vember, 1868 ; that they were prepared to agree that such 
reservations should be measured by the importance of the 
posts to which they were to be attached, and should in no 
case exceed 3,000 acres. The total quantity of land to be 
retained by the Company under this arrangement would not 
exceed 50,000 acres. The Committee cannot agree to the 
absolute exclusion of these reserves from all frontage to "rivers 
or tracks, roads or portages," which would render them 
entirely valueless, although they would have been ready to 
consider any reasonable limitation of these special advantages. 

As regards the right of selecting lands for the Company in 
proportion to the quantities sold from time to time by the 
Government, the Committee desire to call Lord Granville's 
attention to the reasons given in Sir E. Head's letter of the 
13th April, 1864, for adopting this mode of reservation in pre- 
ference to that of " setting apart beforehand -a number of 
isolated tracts of wild land, dotted over the surface of the 
colony, and calculated to impede the free flow of settlement 
in the territory." Their proposal was framed with reference 



APPENDTX. 257 

to sales in the fertile belt only, and it never entered into their 
minds to contemplate such contingencies as those suggested by- 
Mr. Adderley's letter. In order, however to obviate all cavil 
upon this point, they would have been quite willing to limit 
the Company's right of selection to the case of lands sold 
or alienated within Sir E. Head's limits, provided that it were 
agreed that no alienations should take place beyond those 
limits, except either for distinctly public purposes or for 
the bona fide carrying on of agricultural or mining operations. 
As regards Mr. Adderley's proposal that the right of selection 
should be confined to five lots of 200 acres each, in each 
township as it is set out, the Committee can only remark that 
the character of this proposal must depend upon the size of the 
township, of which no indication has been given. 

The Committee still adhere to the opinion that under the 
peculiar circumstances of the proposed transfer of their terri- 
tory it would be reasonable that their wild lands should, for 
a limited time, be exempt from taxation, in order to allow 
them a fair opportunity of bringing them into profitable 
cultivation. 

They observe that Mr. Adderley makes no reference to the 
tenth stipulation contained in Lord Kimberley's letter of the 
13th May, viz., that until the stipulated sum of =£1,000,000 
sterling has been paid to the Company, no export duties shall 
be levied by Canada upon furs exported by the Company, 
nor any import duties on articles imported by them into the 
North Western territory, and into that part of Rupert's Land 
which is not included within the geographical limits laid down 
in Sir Edmund Head's letter of November 11th, 1863. This 
is a point to which the Committee attached very great import- 
ance. If it had been proposed by the Canadian Government 
to make a direct purchase of the Company's territory, and to 
pay the price for it at once, the Company would of course have 
accepted their fair share of the burdens which annexation might 
be expected to involve. But if the purchase money is to be 
withheld until the Canadian G-overnment have sold off 20,- 



258 APPENDIX. 

000,000 acres of the land, or have realized a considerable sum 
by the produce of mining operations, it is reasonable that the 
pressure of the fiscal burdens, which would fall almost ex- 
clusively upon the Company's trade, should be suspended 
also. Otherwise it might happen that, in consequence of the 
neglect or the inability of the Canadian Government to pro- 
ceed with the settlement of the territory, the Company would 
be subjected to very heavy contributions to the colonial 
treasury without receiving the smallest benefit in return. As 
an illustration of the extent to which they might thus be in- 
jured were no limitation placed upon the colonial power of 
taxation, I may observe that, according to the present Canadian 
tariff, the duty upon the value of the Company's imports alone 
would amount to about £20,000 a-year, while any export duty 
that might be laid upon their furs would operate still further to 
their disadvantage, The Committee feel confident that Lord 
G-ranville will acknowledge the reasonableness of their 
taking precautions against such a contingency. 

The Committee have desired me to offer to Lord G-ranville 
these explanations of their proposals, in order to show that they 
have done their best to comply with the desire of her Majesty s 
Grovernment, that they should submit a scheme founded on 
the principles of the negotiations of 1 864. They have not, 
however, failed to perceive from an early period of the 
lengthened correspondence which has taken place between 
them and the Grovernment, that those principles necessarily 
gave rise to many difficulties ; and they have felt this the more 
strongly since the negotiations originally commenced between 
the Company and Her Majesty's Government have virtually 
become negotiations between the Company and the Govern- 
ment of Canada. They cannot disguise from themselves the 
danger which exists that arrangements so complicated, and 
involving so many topics for future discussion, are likely to 
lead to the Company's being placed in a position of antagonism 
to the Government of C -anada, and to the creation of a state of 
things injurious not only to their own interests but to the 



APPENDIX. 259 

welfare of the country itself. They are sincerely anxious to 

co-operate with the Canadian Government in the settlement, 

development and improvement of the territories with which 

they have been so long connected, and they believe that, if 

the arrangement between them can be placed on a satisfactory 

footing, it will be in their power to render material assistance 

to the Colonial authorities in this respect. They believe that, 

if a simpler arrangement than that which has recently been 

under discussion could be adopted, and if the Canadian 

Government were prepared to complete the purchase of the 

territory at once, by the payment of a sum of money or by the 

delivery of bonds, it would conduce to a more satisfactory 

result than the prolongation of a controversy as to the minute 

points of such a scheme as has been under consideration. 

Should Lord Granville be of this opinion, and should his 

Lordship think it desirable to recommend any proposal of the 

kind to the Canadian Delegates, this Committee will gladly 

place themselves in fuller communication with 'him on the 

subject. 

I have, &c, 

(Signed) Stafford H. Northcote, 

Governor, 
Sir Frederic Rogers, Bart. 



Sir F. Rogers to Sir G. Cartier and Wm. McDougall. 

Downing Street, 18th January, 1869. 

GentlemeiY, — I am directed by Earl Granville to transmit 
to you, for any observations which you may wish to offer upon 
it, the enclosed copy of a letter from the Hudson's Bay Com- 
pany in answer to the proposals made to them by the Duke 
of Buckingham and Chandos in the letter from this Depart- 
ment of the 1st of December last, with respect to the proposed 



260 APPENDIX. 

cession to the Crown of the Company's territorial rights i 1 

British North America. 

I am, Gentlemen, 

Your obedient servant, 

(Signed) Frederic Eogers. 

Sir Or. E. Cartier, Bart., 

W. McDougall, Esq., C.B. 



Sir. Geo. E. Cartier and Mr. McDougall to Sir F. Rogers. 

Westminster Palace Hotel, 
London, February 8th, 1869. 

Sir, — We have the honour to acknowledge the receipt of 
your letter of the 18th ultimo, enclosing a copy of Sir Stafford 
Northcote's letter of the 13th ultimo, in reply to proposals 
made to the Hudson's Bay Company for the cession to the 
Crown of their territorial rights in British America, by His 
G-race the Duke of Buckingham and Chandos, in the letter 
of Mr. Adderley of 1st December last 

You state that Earl G-ranville directed you to transmit this 
document to us for any observations which we may wish to 
offer upon it. His Lordship's courtesy and consideration in 
sending us a copy of Sir Stafford Northcote!s letter and 
inviting us to express our views upon it are gratefully ac- 
knowledged, but upon reflection we thought it would be 
expedient to refrain from any formal expression of our opinion 
on new and indefinite propositions, until we had received 
some intimation of the view which his Lordship was likely 
himself to take of them, or of the policy in respect to the 
general question which her Majesty's present advisers intend 
to adopt. 

At an interview with which we were favoured by Earl 
Granville on the 26th ultimo, he expressed his preference for 
a less complicated mode of dealing* with the Hudson's Bay 
question than that proposed by the Duke of Buckingham and 



APPENDIX. 261 

Chandos, and requested us to communicate to him our obser- 
vations on the reply of Sir Stafford Northcote, and especially 
on the proposition with which his letter concludes, viz., that 
the Canadian Government should " complete the purchase of 
the territory at once, by a payment of a sum of money or by 
the delivery of bonds." 

As we have had but few opportunities to confer with his 
Lordship since his accession to office, it may be proper, before 
considering Sir Stafford Northcote's letter, to state the posi- 
tion of the Canadian Government, as we apprehend it, in this 
negotiation. 

The British North America Act of 1867 affirmed the policy 
of uniting under one government all the colonies, provinces, 
and territories of British North America. Three provinces 
were united at once, and provision was made by the 146th 
section, for the admission into the union, of the remaining 
colonies, on address to her Majesty by their respective Legis- 
latures and the Parliament of Canada. 

The North- West territories and Rupert's Land, or either of 
them, are to be admitted on the address of the Parliament of 
Canada alone, and on such terms and conditions as the Cana- 
dian Parliament may, in its address express, and her Majesty 
approve. 

In pursuance of the policy of the Imperial Parliament thus 
distinctly affirmed, the Canadian Parliament at its first session 
under the new constitution, adopted an address to her Ma- 
jesty for the incorporation of the North- West territory and 
Euperts Land with the Dominion of Canada. The terms and 
conditions expressed in the address were, — 

1st. That Canada should undertake the duties and obliga- 
tions of Government, and legislation in respect of those 
territories. 

2nd. That the legal rights of any corporation, company, or 
individul within the territory should be respected, and that 
provision should be made for that purpose by placing those 
rights under the protection of courts of competent jurisdiction. 



262 APPENDIX. 

3rd. That the claims of the Indian tribes to compensation 
for lands required for purposes of settlement should be con- 
sidered and settled, in conformity with the equitable princi- 
ples which have uniformly governed the British Crown in its 
dealings with the aborigines. 

The above were the only terms and conditions which, in the 
opinion of the Canadian Parliament, it was expedient to insert 
in the Order in Council, authorised by the 146th section. 

His G-race the Duke of Buckingham and Chandos, on re 
ceiving the address of the Canadian Parliament, consulted the 
law officers of the Crown, who advised, among other things, 
"that there would be much difficulty created by the 
existence of the charter " of the Hudson Bay Company, to 
" putting into execution the powers of the 140th (146th) 
section of the British America Act, 1867, assuming that the 
Hudson's Bay Company were adverse to the union." 

A bill was thereupon carried through the Imperial Parlia- 
ment, apparently to remove the "difficulties" which the law 
officers had discovered. It reverses the order of procedure 
contemplated by the Act of 1867, and observed by the Cana- 
dian Parliament in its address, and makes the assent of the 
Company a condition precedent to the transfer. 

The Canadian Government were not consulted as to the 
terms of this Act ; they could not understand- why it was 
necessary, and greaty doubted the expediency of passing it. 

The Duke of Buckingham and Chandos, having opened 
negotiations with the Hudson's Bay Company under the 
authority of the Act last mentioned, invited a delegation from 
the Canadian Government to confer with him in this country. 
The undersigned, duly commissioned for that purpose, repaired 
to London in October last, and had frequent interviews with 
his G-race before his retirement from office. 

The proposals submitted to the Company by the late Govern- 
ment in the letter of Mr. Adderley of the 1st December last, 
were not made at our suggestion, although we were disposed 
to think (and so informed his Grace) that if the Company 



APPENDIX. 263 

accepted them, the Canadian Parliament might be persuaded 
to undertake the duties of legislation and government in the 
territories on the conditions specified. 

The Company, through Sir Stafford Northcote, have declined 
to accept either the principle or the mode of settlement pro- 
posed by the late G-overnment, but suggest a new and sum- 
mary method of closing the negotiations, by demanding that 
the Canadian Government should, by a payment in cash or 
bonds, "complete the purchase of the territory at once.". 
No sum is mentioned, and no data given from which it can 
be inferred. Under these circumstances, we are asked, as repre- 
sentatives of the Canadian G-overnment, to communicate to 
Earl Granville any observations we may wish to offer on this 
reply and proposition of the Company. 

His Lordship will readily perceive from the foregoing recital, 
that, as representatives of the Canadian G-overnment. we are 
in the position of spectators of a negotiation, begun and carried 
on upon principles and under conditions to which we are 
strangers, rather than that of assenting principals, responsible 
for its initiation and bound by its results. 

Without undertaking, therefore, that our views on every 
point will be approved by the Canadian Government, we 
proceed most respectfully to offer a few observations on Sir 
Stafford Northcote's reply to the recent proposals of the Im- 
perial G-overnment. 

It will be observed that two things are assumed in these 
proposals to the Company, which the Canadian G-overnment 
have always disputed. 

1st. That the Charter of Charles II. is still valid, and grants 
the right of soil, or freehold, of Rupert's Land to the Company. 

2nd. That Rupert's Land includes the so-called " Fertile 
Belt," extending from the Lake of the Woods to the Rocky 
Mountains. 

The law officers of the Crown in England have, on two or 
three occasions, given their opinion in favour of the first 
assumption, but never, so far as we are aware, in favour of the 



264 APPENDIX. 

second. The report of the law officers in 1857 admits that 
the geographical extent of the territory granted must be de- 
termined by excluding the country that " could have been 
rightfully claimed by the French as falling within the bound- 
aries of Canada," (which the Charter itself excludes by express 
words), and states that "the assertion of ownership on im- 
portant public occasions, as at the treaties of Ryswick and 
Utrecht," should be considered ; and also " the effect of the 
Acts of 1774 and 1791." The most recent opinion of the law 
officers of the Crown which we have seen (January 6th, 1868), 
as to the rights of the Hudson's Bay Company, does not even 
by implication support their present claim to the fee-simple 
of nearly one-third of the American continent. On the 
contrary, Sir John Karslake and his colleagues conclude their 
report with the emphatic statement that it is " very necessary, 
before any union of Rupert's Land with Canada is effected, 
that the true limits of the territory and possessions held 
under the charter should be accurately defined." An assump- 
tion, therefore, which covers so much ground, and is unsup- 
ported by any competent legal authority : which ignores the 
repeated protests and claims of Canada, and seeks to supply a 
basis upon which a surrender for valuable consideration may 
be made, is, to say the least, a most favourable assumption for 
the Company. We notice these points in Mr. Adderley's letter 
before remarking on Sir Stafford Northcote's reply, to prevent 
the possible inference that we have acquiesced in them. 

Sir Stafford Northcote assures Lord G-ranville that the Com- 
pany " continues sincerely anxious to promote the object with 
a view to which the Company was re-constructed five and 
a-half years ago, viz., the gradual settlement of such portions 
of their territory as admit of colonization." It would be 
tedious to quote the numerous and positive averments by 
members and governors of the Hudson's Bay Company, in the 
course of official inquiries during the last fifty years, that their 
territories (in which they included the Red river and the 
Saskatchewan districts) are totally unfit for colonization. The 



APPENDIX. 265 

evidence of Sir G-eorge Simpson before the House of Commons 
Committe of 1857, is a fair sample of the views heretofore 
entertained and avowed by the representatives of the Com- 
pany. {Vide Commons Report 1857 ; Questions 716, 717, 718, 
719, &c.) Mr. Ellice, for many years the ruling spirit of the 
Company, declared before the same committee that the Red 
river settlement was an " unwise speculation," and " had 
failed ; " that " the climate is not favourable ; " that the Saskatch- 
awan is a country capable of settlement only when "the popu- 
lation of America becomes so dense that they are forced into 
situations less fit for settlement than those they occupy now;" 
that the winters are " rigorous," and the country " badly off 
for fuel," &c. (Questions 5,840 and 5,847). 

With such views of the unfitness of the country for settle- 
ment, and avowing their belief that colonization and the fur- 
trade could not exist together, it is not surprising that the 
Company have always cherished the latter, which was profit- 
able, and discouraged, and, as far as possible, prevented the 
former, which had proved an "unwise speculation." It is 
true that the Company was "re-constructed" in 1S63, with 
loud promises of a new policy. A great road across the conti- 
nent was to be made, a telegraph line was to be put up, and 
emigration and colonization developed on a large scale. The 
Duke of Newcastle, then Secretary of State for the Colonies, 
was so much impressed by the zeal and public spirit of the 
gentlemen who effected the re-construction, that he wrote 
despatches to the Canadian Government on their behalf, and 
evidently believed that a new era was about to open in the 
North-West, and the wild animals and fur traders retreat 
before the march of "European" settlers. The stock of the 
old Company, worth in the market about <£1,000,000, was 
bought up, and by some process which we are unable to des- 
cribe, became .£2,000,000. A show of anxiety to open postal 
and telegraphic communication was made, and " heads of 
proposals " were submitted to the Governments of Canada 
and British Columbia, which on examination were found to 



266 APPENDIX. 

embrace a line of telegraph only, with the modest suggestion 
that the two Governments should guarantee the Company a 
profit of not less than 4 per cent, on their expenditure ! A 
proposal so absurd could only have been made to be rejected, 
and it was rejected accordingly. The surplus capital of the 
re-constructed Company, which was called up for the avowed 
purpose of opening their territories to " European colonization, 
under a liberal and systematic scheme of land settlement," has 
never been applied to that purpose. Five and a-half years 
have passed since, the grand scheme was announced to the 
world, but no European emigrants have been sent out, no 
attempts to colonize have been made. Sir Stafford Northcote 
was not probably aware, when he vouched for the bona fides 
of the Hudson's Bay Company as promoters of colonization, 
that a solemn vote of the shareholders was taken in the month 
of November, 1866, which condemned and rejected the policy 
of colonization, absolutely and definitively. 

While unable, for the reason stated, to concur in Sir Stafford 
Northcote's assurance that the Hudson's Bay Company are 
anxious to promote colonization, we are gratified to learn 
that they " adhere " to the resolution of 28th August, 1863, 
that ihe time has come when it is expedient that " the authority 
executive and judicial over the Red River Settlement and the 
South-Western portion of Rupert's Land, should be vested in 
officers deriving such authority directly from the Crown." 

The first remark we have to make upon this reference to 
the resolution of 1863 is, that it admits the continued incapa- 
city of the Company as a governing power ; the second, that if 
this was true in 1863, — if at that time it became expedient, to 
substitute the authority of the Crown for that of the Company, 
— it is much more expedient, if not absolutely necessary, now ; 
and third, that if the Company are to be relieved of the duty 
and cost of government which their Charter imposes, and 
which they admit they do not and cannot properly discharge, 
compensation should be made, net to the Company, as is 
claimed, but by the Company to those who take the burden 
off their shoulders. 



APPENDIX. 267 

We confess we have failed to discover any evidence, and 
therefore cannot believe, that the Company have "cheerfully "" 
accepted the decision of her Majesty's Government, " that 
the whole of the Company's territory should, under proper 
conditions, be united with Canada." A brief notice of the 
acts in contrast with the professions of the Company, will T we- 
think, account for the ill success of our researches and justify 
our incredulity. 

The representatives of the Company, while declaring before 
the House of Commons Committee in 1857 (as we hsve already 
shown) that their territories were "unfit for settlement," pro- 
fessed their readiness to surrender any portion of them that 
might be desired by the Imperial or Canadian Government 
for that purpose. 

Mr. Ellice declared in the most unqualified terms, not only 
that the Company was willing to surrender, but that it was 
the duty of the Government to see that no mere trading cor- 
poration obstructed " for one moment," nor to the extent of 
" one acre of land fit for settlement," the " dominion of the 
actual settlers." (Commons Report, 1857 ; questions 5,859,. 
5,860 and 5,933). 

The Governor of the Company informed the Colonial Secre- 
tary (18th July, 1857,) that any inquiry into the " geographical 
extent of the territory granted by their Charter," which the 
law officers had recommended, was of little importance, be- 
cause, if the object of the inquiry was " to obtain for Canada 
land fit for cultivation and the establishment of agricultural 
settlers, the Directors are already prepared to recommend to 
the shareholders of the Company to cede any lands which may 
be required for that purpose. The terms of such cession," he 
assured Mr. Labouchere, "would be a matter of no difficulty 
between her Majesty's Government and the Company." 

Mr. Ellice had previously told the House of Commons Com- 
mittee, that the question of boundary was "of no importance 
at all," because " if the province of Canada requires any part 
of the territory, or the whole of it, for purposes of settlement,. 



268 APPENDIX. 

it ought not to be permitted for one moment to remain in the 
hands of the Hudson's Bay Company." He added that less 
money than would be spent in a litigation upon the subject 
would be sufficient to indemnify the Hudson's Bay Company 
for any claim which they could have on giving up any dis- 
puted part of their territory." 

These assurances induced the Committee to negative pro- 
positions for ascertaining by a judicial inquiry the validity of 
the Charter, or the position of boundaries, and to report in 
favour of annexing to Canada " such portion of the land in her 
neighbourhood as may be available to her for the purposes 
of settlement, with which she is willing to open and maintain 
communication, and for which she will provide the means of 
local administration." The Committee "trusted that there 
would be no difficulty in effecting arrangements as between 
her Majesty's Government and the Hudson's Bay Company 
for ceding the territory on equitable principles." 

It may be proper to remind Earl G-ranville, that leading 
members of the Committee of 1857, taking the offers of the 
Company on the subject of colonization to mean, what the 
language of the representatives imported, strongly opposed 
the recommendation to leave the question open for "amicable ad- 
justment " upon " equitable principles," with the certainty of 
protracted negotiations and a chance of ultimate disagreement. 
Mr. Gladstone accordingly submitted resolutions for a prompt 
and definite settlement of the whole question. He proposed — 

1st. " That the country capable of colonization should be 
withdrawn from the jurisdiction of the Hudson's Bay Com- 
pany." 

2nd. "That the country incapable of colonization should re- 
main within their jurisdiction." 

He proposed that in the country remaining within their 
jurisdiction power should be reserved to her Majesty's Gov- 
ernment to make grants " for the purposes of mines and 
fisheries, but with due regard to the immunities and trade 
of the company." No "immunities" were even suggested 



APPENDIX 269 

with respect to the country which was to be withdrawn for 
colonization. He proposed to ignore the Charter, by declaring 
that the jurisdiction of the Company " should rest henceforth 
upon the basis of statute." He quoted the Governor's letter 
above referred to, "as an expression of the willingness of the 
Company to accept in principle the arrangement" he pro- 
posed, and ended with the suggestion that, " as the Company 
had tendered concessions which may prove sufficient to meet 
the case," no decision seemed necessary as to the question of 
raising a " judicial issue with the view of ascertaining the legal 
rights of the Company." The propositions of Mr. Gladstone 
were only lost in the Committee by the casting vote of the 
chairman. 

Twelve years have passed since these offers were made by 
the Company and accepted by a Committee of Parliament. 
Every Colonial Secretary, from 1858 to the present moment, 
has attempted to carry out the recommendation of the Com- 
mittee, with the assent of the Company, but without success. 
Two Acts of the Imperial Parliament have been passed, with 
provisions to facilitate the arrangement, but are yet without 
fruit. Sir Edward Bulwer (Lord Lytton) characterised the 
offers of the Company during his administration as " illusory," 
and declared that they " by no means met the exigencies of the 
case." He expressed his regret at a determination on their part 
which retains the very difficulty in the way of speedy and 
amicable settlement which he had sought to remove," and 
stated that if Canada declined to resort to "legal proceedings 
(which he had recommeded) it would be his duty to consider 
whether negotiations with the Company can be resumed or 
whether in the last resort her Majesty's Government must 
take the matter into their own hands and proceed on their own 
account." (Mr. Merivale's letter to H. H. Berens, 9th March, 
1859.) Sir Edward remained in office long enough to put an 
end to the Company's license of exclusive trade in British 
Columbia and the Indian territories, but not long enough to 
carry out his policy of " connecting the two sides of British 



2T0 APPENDIX. 

North America without the obstacle interposed by a proprie- 
tary jurisdiction between them." 

The Duke of Newcastle opened negotiations with the Com- 
pany in 1863-4 with much vigour. But after various propo- 
sals and counter-proposals, including the " reconstruction" of 
the Company, he was obliged to treat their propositions as 
" inadmissible." 

Mr. Card well, during his administration, could not accept 
their proposals " without considerable modifications." 

The Duke of Buckingham, after many discussions with the 
representatives of the Company, regretted to perceive that 
their proposals " did not afford much prospect of an arrange- 
ment being come to ;" and in the communication to which 
the letter of Sir Stafford Northcote is a reply, declared himself 
" unable to recommend the adoption" of the terms demanded 
by the Company. 

Our notice of what, in Sir Stafford Northcote's opinion, 
constitutes a " cheerful" acceptance of the decision of her 
Majesty's Government, would be incomplete, if we did not 
remind Earl Granville that the Company's "proper condi- 
tions" for the surrender of that portion of the North-Western 
territories, for which they can show no title but such as may 
be derived from the possession of a few trading posts, estab- 
lished there within the last fifty years, rose from a question of 
" no importance at all" in 1857, or at most, of " less money 
than would be spent in a litigation on the subject" (House of 
Commons Report, Question 5,834), to the retention, in 1863, 
in fee-simple, of half the land proposed to be surrendered, 
with various other conditions, including a guarantee by the 
governments of Canada and British Columbia, of an annual 
profit on the Company's expenditures for improvements on 
their own property ! In 1864, these conditions took the form 
of a demand, first, to be paid £\, 000,000 sterling, from sales 
of lands and mines, with large reservations "to be selected 
by them," &c. ; and, secondly, to be paid <£1,000,000 sterling 
in cash, with other terms and reservations favourable to the 
Company. 



APPENDIX. 271 

In 1868, these conditions for the surrender of territorial 
and governing rights over the whole territory, remained at 
<£1,000,000, as in the first proposition of 1864, with large re- 
servations of land at " selected" points, specially exempted 
from taxation, and with full liberty to carry on their trade 
free from the export and import duties, to which all other sub- 
jects of her Majesty in that country would be exposed. 

In 18 09, these various proposals, which no Secretary of 
State could possibly entertain, have all been apparently 
merged in one grand proposition to sell out " the territory at 
once for a sum of money," in cash or bonds, the amount of 
which is not stated. 

We content ourselves under this head with the observation, 
that whatever others may be able to see in all these transac- 
tions, we are utterly unable to discover either a cheerful 
acceptance of the decision of any Government, or an honest dis- 
position to fulfil the solemn pledges made to Parliament in 
1857, on the faith of which the Company was unquestionably 
saved from judicial or legislative extinction. 

Sir Stafford Northcote claims credit for the Company be- 
cause they have " declined to encourage overtures which 
have been made to them by private persons for the purchase 
of portions of the Company's territory with a view to their 
colonization." Our information is (and we can give Earl 
G-ranville names and dates, if the point is deemed of any im- 
portance) that the only " overtures" of the kind mentioned 
which the Company have received, were not merely ' encou- 
raged," but suggested and concocted by prominent members 
of the Company, for the purpose of producing an impression 
on the Grovernment, and with a view, not to colonization, but 
to negotiation and the Stock Market. 

We are not sure that we understand the statement of Sir 
Stafford Northcote that the Company " have taken no step 
which would give rise to fresh complications or place any 
new difficulty in the way of the admission of their territory 
into the Confederation." The sale of land to private parties 



272 APPENDIX. 

for colonization (assuming that bona fide offers have been re- 
ceived from such parties) could not give rise to much compli- 
cation, except in the affairs of the Company. If Sir Stafford 
hints at the negociations which were lately reported to be 
going on with certain American speculators in London for de- 
nationalizing and Americanizing the Company with a view to 
the " admission of their territory" into the United States, in- 
stead of the Confederation, we respectfully submit that while 
such a difficulty might indeed be " new," the proper person 
to solve it would be Her Majesty's Attorn ey-G-eneral, with the 
aid of a court and jury of competent jurisdiction. 

"We do not understand that Earl G-ranville expects us to de- 
fend in detail the Duke of Buckingham's proposals, or to 
answer all the objections made to them by Sir Stafford North- 
cote. The Government of Canada, as we have already re- 
minded his lordship, neither suggested the Act of Parliament 
nor the terms of the negotiation, which the late Secretary of 
State for the Colonies attempted to carry out under its au- 
thority. The Canadian plan of dealing with the question of 
the North-Western Territory and Rupert's Land, is set forth 
in the address of the Canadian Parliament to her Most Gra- 
cious Majesty, and we do not feel at liberty, as representa- 
tives, to suggest any other mode, until we are informed by 
her Majesty's Government that the one proposed is deemed 
impracticable. 

Sir Stafford Northcote's suggestion that " the payment of a 
sum of money" for the purchase of the territory, would con- 
duce to a more satisfactory result, is, we believe, the point 
upon which Earl Granville specially desires to have our 
views. Assuming that by " territory," he means the whole 
territory to which the Company lay claim, and that they arc 
to continue as a trading corporation, retaining their posts, and 
allotments of land in their neighbourhood, as he states was 
agreed upon by the Duke of Buckingham and Lord Kimber- 
ley, we have to observe : 

1. This proposition involves an abandonment of the prin- 



APPENDIX. 273 

ciple which two Secretaries of State (and it must be presumed, 
two successive administrations) declared, after much conside- 
ration, and in view of the transactions of 1857, was properly 
and justly applicable to this case, viz. : That the compensa- 
tion should be derived from the future revenue of the terri- 
tory itself, and payable only as it came into the hands of Go- 
vernment. This principle was also accepted by the Company 
in their communication of 13th April, 1864. 

2. On the other hand, the principle of ascertaining and fix- 
ing a money value upon the territorial rights of the Company 
" in the British territory east of the Eocky Mountains, and 
north of the American and Canadian lines," and of extin- 
guishing those rights by a payment " at once," was sugges- 
ted, in 1865, by a delegation from the Canadian Government 
of that day, and assented to by Mr. Cardwell, then Secretary 
of State for the Colonies, and his colleagues. 

If the latter principle and mode of settlement is now to be 
adopted, it is obvious that the first question is, What is the 
nature of these " rights," and what territories do they affect ? 
and the second, What are the rights, separated from the du- 
ties and burdens attached to them by the Charter, fairly 
worth ? 

We shall not attempt to answer these questions fully in the 
present communication, but we venture to submit for Earl 
Granville's consideration a few facts and inferences, which 
cannot, we believe, be disputed, and which are essential ele- 
ments in any calculation which may be attempted on the 
basis of a money purchase. 

1. The Charter of Charles II. (and for the present, we raise 
no question as to its validity) could not and did not grant to 
the Hudson's Bay Company any territory in America which 
was not then (1670) subject to the Crown of England. 

2. The Charter expressly excluded all lands, &c , then 
" possessed by the subjects of any other Christian prince or 
State." 

3. By the treaty of St.-Germains-en-Laye (1632), the King 

T 



274 APPENDIX 

of England resigned to the King of France the sovereignty 
of Acadia, New France and Canada generally, and without 
limits. 

4. " La Nouvelle France " was then understood to include 
the whole region of Hudson's Bay, as the maps and histories 
of the time, English and French, abundantly prove. 

5. At the Treaty of Ryswick (1697), 27 years after the date 
of the Charter, the right of the French to " places situated in 
the Hudson's Bay" was distinctly admitted; and although 
commissioners were appointed (but never came to an agree- 
ment) to " examine and determine the pretensions which either 
of the said Kings hath to the places situate in the Hudson's 
Bay," and with " authority for settling the limits and confines 
of the lands to be restored on either side ; " the places taken 
from the English (i. e. from the Hudson's Bay Company) by 
the French previous to the war, and " retaken by the English 
during this war, shall be left to the French by virtue of the 
foregoing (the 7th) article." In other words, the forts and 
factories of the Hudson's Bay Company, established in Hud- 
son's Bay under pretence of their Charter and taken possession 
of by the French in time of peace, on the ground that they 
were an invasion of French territory, were restored, by the 
Treaty of Eyswick, to the French, and not to the Company. 

6. By the Treaty of Utrecht, 1714, "the Bay -and Straits of 
Hudson, together with all lands, seas, sea coasts, rivers, and 
places situate in the Bay and Straits, and which belong 
thereto," were finally ceded to Great Britain. 

7. As no definite boundary was ever established between 
the possessions of the French in the interior and the Eng- 
lish at Hudson's Bay, down to the Treaty of Paris, 1763, when 
the whole of Canada was ceded to Great Britain, the extent of 
the actual possession by the two nations for some period, say 
from the Treaty of Utrecht to the Treaty of Paris, affords the 
only rational and true basis for ascertaining that boundary. 

8. The evidence is abundant and conclusive to prove that 
the French traded over, and possessed the whole of the country 



APPENDIX. 275 

known as the Winnepeg Basin and " Fertile Belt," from its 
discovery by Europeans down to the Treaty of Paris, and that 
the Hudson's Bay Company neither traded, nor established 
posts to the south or west of Lake Winnepeg, until many years 
after the cession of Canada to England. 

9. No other or subsequent grant to the Company was ever 
made which could possibly extend their territorial rights under 
their Charter. The license to trade in the Indian territories, 
which they obtained in 1821, was revoked in 1858, and has 
not been renewed. 

10. The country which, in view of these facts, must be ex- 
cluded from the operation of the Charter, includes all the lands 
fit for cultivation and settlement in that part of British America. 

It will be for Earl G-ranville to consider whether this 
Company is entitled to demand any payment whatever, for 
surrendering to the Crown that which already belongs to it. 
"We confess our utter inability, upon any principle of law, or 
justice, or public policy, with which we are acquainted, to 
estimate the amount which ought to be paid under such cir- 
cumstances. The only basis of computation we can discover, 
applicable to such a case, is the cost of the legal proceedings, if 
any be necessary, to recover possession. A person has taken 
possession of a part of your domain under the pretence that it 
is included in a deed which you gave him for some adjoining 
property before you purchased the domain. You want to get 
rid of him, but will be compelled to bring an action. He is 
artful, stubborn, wealthy and influential. He will be able to 
worry you with a tedious litigation. How many acres will 
you allow him to " reserve," and how much will you pay to 
save yourself the cost and trouble of a law suit? Compro- 
mises of this kind are not unknown in private life, and the 
motives and calculations which govern them may be applica- 
ble to the present case. We recommend this mode of comput- 
ing the amount of the payment to be made for the surrender 
of the North- West territory, as distinguished from Rupert's 
Land, with all the more confidence, because it has already 



276 APPENDIX. 

been suggested by one of the ablest and most trusted of the repre- 
sentatives of the Company. (Yide evidence of Eight Honourable 
E. Ellice, House of Commons Report, 1857, question 5,834.) 

With respect to Rupert's Land, or the " lands and territories," 
"upon the coasts and confines of the seas, bays," &c, that lie 
"within the entrance of the straits commonly called Hudson's 
Straits" "not possessed by the subjects of any other Christian 
prince or state," a different rule, we admit, may be held to 
apply. Giving to the words of grant the widest construction, 
territorially, that could possibly be admitted by any judicial 
body with the facts of the case in evidence before it, or, giving 
to these words the construction which the Company them- 
selves applied for a hundred years from the date of their 
Charter, the "rights" they propose to sell are of little commer- 
cial value. No revenue, we feel assured, will ever be derived 
from them. The fur trade is the only industry the country 
offers as a source of profit, and this, if we rightly understand 
Sir Stafford Northcote's suggestion, the Company wish to 
retain. 

It has never been alleged, even by the most sanguine advo- 
cates of the new theory of the Company respecting land-sales, 
that any revenue can be derived from that source within the 
limits which we have assigned to Rupert's Land. The cost 
of Government there, inconsiderable though it may be, will 
always exceed any possible revenue. We are thus led to the 
same conclusion as in the case of the territory claimed, but 
not owned, by the Company, viz., that what they propose to 
sell has no pecuniary or commercial value. They are there, 
however, by at least a show of right. Being there, they ob- 
struct the progress of Imperial and Colonial policy, and put in 
jeopardy the sovereign rights of the Crown over one-third 
(and as some think, even a larger portion) of the North Ameri- 
can Continent. "What is it worth to have this obstruction 
quietly removed ?" This is perhaps the true question ; but the 
answer, we submit, belongs rather to Her Majesty's Government 
— which has the power, in the event of resistance, to remove 



APPENDIX. 277 

the evil by a summary process — than to those who are little 
more than spectators of the negotiation. 

Earl Granville is aware that several attempts have been 
made since 1857 to arrive at a definite agreement on the sub- 
ject of compensation. The suggestions and proposals on each 
side, together with the actual market value of the Company's 
stock at different periods, supply data which his Lordship may 
deem of importance ; and we therefore respectfully submit our 
views as to the conclusions which may be deduced from them. 

The first attempt of the Imperial Government to estimate, 
and express in pounds sterling, the compensation which it 
would be reasonable to offer to the Company, was made by 
the Duke of Newcastle in 1864. The greatest sum which, 
after " very grave consideration," his Grace felt himself able to 
propose for the surrender of the country west of Lake Winne- 
peg was ,£250,000. But the payment w T as subject to the follow- 
ing conditions : — 

1. ,£150,000 was to be derived from the sale of lands by 
Government within the territory. The payment was to be 
made at the rate of Is. per acre sold, but to be entirely de- 
pendent on the Government's receipts. 

2. Payments were to cease whenever they reached <£150,- 
000 ; and absolutely at the end of fifty years. 

3. The Company was to be paid one-fourth of the sum 
received by Government for export duty on gold or for mining 
licenses or leases for gold-mining in the territory, for fifty 
years, or until the aggregate amounted to ,£100,000. 

4. The payment of any part of the ,£250,000 was contingent 
on the ability of the Company to place Her Majesty's Govern- 
ment in possession of an " indisputable title " to the territory 
ceded by them as against the claims of Canada. 

The last condition was objected to by the Company on the 
ground that they could only give such title as they had, which 
they contended "must be taken for better for worse." The 
Duke of Newcastle renewed his offer, modifying the last con- 
dition into a stipulation that, in case it should be found 



278 APPENDIX. 

advisable, the territory eastward of a line passing through 
Lake Winnepeg and Lake of the Woods might be ceded or 
annexed to Canada, in which case nothing would be payable 
to the Company in respect of that territory. 

The present value in cash of such an offer, subject to the 
conditions and contingencies specified, would be very difficult 
to ascertain. The revenue from export duty on gold and for 
licenses would probably be nil. The revenue from land sales, 
if the costs of surveys, management, and necessary roads were 
deducted, would be nil also. It is very doubtful whether, if 
these deductions be made, the revenue from land sales in the 
provinces of Canada from the cession in 1763 to the present 
time would show a surplus. 

Sir Stafford Northcote quotes the price of land in Minnesota, 
and thence infers the value of lands in theRedRiver and Saskat- 
chawan districts, which lie from five to ten degrees further 
north, and are still in the possession of the wild Indians of the 
plain. But we think it will be found that the lands in Min- 
nesota, which sell for "one pound per acre," are either private 
lands in the neighbourhood of towns, or the property of railway 
companies, on or near which millions of dollars have been 
expended to make them saleable. They are certainly not 
public lands unimproved by public expenditure. Sir Stafford 
ought to have mentioned at the same time a fact, which we 
believe is known to every emigrant who leaves the British 
Isles for America, that in the "Western States of the Union, 
and in the Provinces of Canada, wild lands are now given to 
settlers as "free grants," and we may add, this policy is more 
likely to be extended than reversed. To talk of the value of 
public lands as a source of revenue, distant from one to two 
thousand miles from available markets, and without roads or 
navigable waters by which to approach them, is to contradict 
all experience, or to assume that the cost of surveys and man- 
agement, and of canals, roads, or other improvements for their 
development and settlement, will be supplied by those who 
do not own them, for the benefit of those who do. 






APPENDIX. 279 

But in order to arrive at some result that can be expressed 
in figures, we will assume that the sum ascertained by the 
Duke of Newcastle to be a sufficient " compensation " would, 
under his proposition, have been paid within 50 years, and at 
an average rate per annum. We thus give the Company the 
benefit of all the doubts in the case, and reduce the question 
to a simple problem in arithmetic : What is the present value 
of an annuity of £5,000 per annum for fifty years ? 

That value, we submit, is the highest amount in cash which 
can be claimed as an equivalent for the offer made to the Com- 
pany in 1864 by his G-race the Duke of Newcastle. 

The next offer of the Imperial G-overnment which mentions 
a specific sum, is that made by his G-race the Duke of Buck- 
ingham and Chandos, on the 1st December last. It differs 
from the previous offer in several important particulars. 

1. It embraces the whole of the territory claimed by the 
Company. 

2. It proposes to allow the Company to retain their "posts" 
and ceriain allotments of lands in their vicinity, with a small 
reservation in each township as it is surveyed. 

3. It proposes to allow the Company one-quarter of the 
receipts from land (free grants being treated as sales at Is. per 
acre), and one quarter of the sum received by G-overnment as 
an export duty for gold and silver. 

4. It limits the amount to be received under these heads 
conjointly, at £1,000,000 sterling. 

The other stipulations are unimportant for the purpose of 
ascertaining the cash equivalent of the proposition. 

It is evident that the " unknown quantities " in this equation 
are as difficult to find as in the first. We know the total sum 
to be paid, and the proportion of the receipts from lands and 
mines applicable for its payment ; but we do not know the 
average annual sum likely to be realized from their sale. The 
minimum price is fixed at Is. per acre, and it is doubtful if, 
under the proposed arrangement, the price would ever be 
found to exceed that sum. There is one term still to be ascer- 



280 APPENDIX. 

tained — the average number of acres per annum likely to be 
sold and granted. A crude guess is all that the case admits of. 
If we take Upper Canada, possessing many advantages for 
early and rapid settlement of which, unfortunately, the remote 
territories of the North- West are deprived, we find that from 
its erection into a separate province, down to 1868, about 22 
millions of acres had been disposed of by sale and grant, or an 
average of about 286,000 acres per annum. 

Assuming that the same rate of sale, &c., is maintained in 
the North-West Territories (which all the old Hudson Bay 
authorities who know the country would pronounce a bold 
assumption), we have reduced the question to a simple refer- 
ence to the annuity tables as before, viz., What is the present 
value of an annuity of <£3,575 per annum for 280 years ? 

We have omitted from the last term the one-fourth of the 
Government receipts from gold and silver, for two reasons. 
1st, It has not been shewn that there are gold or silver mines 
in the territory, that will pay for working. 2nd, All the 
attempts heretofore made to obtain a revenue from such 
sources in Canada have failed, and public opinion has forced 
the local governments to adopt the policy of what may be 
called " free mining," or cheap lands for the miners, and aboli- 
tion of royalties and imposts, except to meet the cost of pre- 
serving the peace, and of surveys and necessary supervision. 

There is another proposition on the Grovernment side, 
which bears on the question of "compensation." It results 
from the agreement between the representatives of the Gro- 
vernment of Canada, and Her Majesty's Grovernment in 1865, 
and containing fewer elements of uncertainty than propositions 
which involve questions of Grovernment policy, emigration, 
land sales, &c; it can be reduced to a cash value with greater 
exactitude. 

Mr. Cardwell describes the agreement as follows : — "On the 
fourth point, the subject of the North- Western Territory, the 
Canadian Ministers desired that that territory should be 
made over to Canada, and undertook to negotiate with the 



APPENDIX. 281 

Hudson's Bay Company for the termination of their rights 
on condition that the indemnity, if any, should be paid by a 
loan to be raised by Canada under the Imperial guarantee. 
With the sanction of the Cabinet, we assented to this proposal 
— undertaking, that if the negotiation should be successful, 
we on the part of the Crown, being satisfied that the amount 
of the indemnity was reasonable, and the security sufficient, 
would apply., to the Imperial Parliament to sanction the 
agreement, and to guarantee the amount." 

The Canadian delegates reported on the subject with a 
little more detail. " We accordingly proposed to the Impe- 
rial Ministers that the whole British territory east of the 
Rocky Mountains, and north of the American or Canadian 
lines, should be made over to Canada, subject to such rights 
as the Hudson's Bay Company might be able to establish^ and 
that the compensation to that Company (if any were found to 
be due) should be met by a loan guaranteed by Great Britain. 
The Imperial G-overnment consented to this, and a careful in- 
vestigation of the case satisfies us that the compensation to 
the Hudson's Bay Company cannot, under any circumstances, 
be onerous. It is but two years since the present Hudson's 
Bay Company purchased the entire property of the old Com- 
pany ; they paid <£! ,500,000 for the entire property and assets, 
in which were included a large sum of cash on hand, large 
landed properties in British Columbia and elsewhere, not in- 
cluded in our arrangement, a very large claim against the 
United States Government, under the Oregon treaty ; and 
ships, goods, pelts and business premises in England and 
Canada, valued at £1,023,569. The value of the territorial 
rights of the Company, therefore, in the estimation of the 
Company itself, will be easily arrived at." 

The principle which this agreement between the two Go- 
vernments recognizes as applicable to the case, appears to be 
— compensation in money for the ascertained rights of the 
Company, after deducting the value of the property retained 
by them. The words " if any," and " if any were found to be 



282 APPENDIX. 

due," import that, in the opinion of both parties, it was pos 
sible, if not probable, that after making the deductions, no 
compensation would be " due ' 

The basis of the calculation which seems to have been 
made, or agreed upon, is very simple. The old Hudson Bay 
Company had recently sold all the rights and property of the 
Company, of every description, for the sum of .£1,500,000. 
An inventory, agreed to by both sellers and purchasers, set 
down the assets, exclusive of " Territorial Eights," as follows : 
" 1. The assets (exclusive of Nos. 2 and 3) of 
the Hudson's Bay Company, recently and 
specially valued by competent valuers. £1, 023,5 69 
" 2. The landed territory (not valued) 
" 3. A cash balance of £370,000 



£1,393,569" 



On the face of their own statement, £1,500,000 less the above 
sum, or £i06,431, was the amount which the new purchasers 
actually paid for the " Landed Territory." Under the agree- 
ment of 1865, this seems to be the highest sum which Mr. 
Cardwell and the representatives of the Canadian G-overn- 
ment thought could in any event be demanded by the Com- 
pany as indemnity or compensation for the surrender of the 
rights they " would be able to establish." 

We have thus attempted to convert into their equivalents 
in cash, the two offers made to the Company since 1857 by 
the Imperial Government, and to ascertain the amount of the 
indemnity contemplated by Mr. Cardwell and the Canadian 
delegates in the arrangements of 1865. To arrive at any re- 
sult, we have had to assume figures which, according to our 
experience, the facts of a new country will be more likely to 
reduce than to increase. We have also omitted conditions 
either implied or expressed in the proposals of 1864 and 1868, 
which we believe would have imposed considerable expense 
upon the Company. 



4PPENDIX. 283 

There is another mode of estimating the amount to be paid, 
on the principle of compensating for actual loss only, "which 
remains to be considered. 

The stock of the Company has for some time been quoted 
at an average of 13J. The capital is, nominally, c£2,000,000, 
and the shares £20 — the value of the stock, therefore, in cash, 
assuming that the whole of it could be sold at the market rate, 
is £ 1,350,000, or <£43,569 less than the value, according to their 
own estimate, in 1863, of the Company's assets, exclusive of 
the " landed territory." The money obtained from the public 
for shares, beyond the <£1, 500,000 paid to the old shareholders, 
will no doubt be amply sufficient to make good any deficiency 
in the valuation of 1863. 

From a consideration of these data, we submit that, if the 
validity of the Charter is not now to be questioned ; if the 
territorial extent of the country affected by it is not to be de- 
fined ; if the claim of Canada to include within her bounda- 
ries a large portion, if not the whole, of the country occupied 
by the French at the time of the cession in 1763, is not to be 
investigated, and finally determined ; if the admitted incapa- 
city and the notorious neglect of the Company to perform the 
duties of government (which were part of the consideration 
for the rights conceded by the Charter), are not to be taken as 
sufficient on public grounds to justify cancellation, and re- 
entry by the Crown — then the very highest indemnity which 
ought to be paid, in cash, for a surrender of the territorial 
claims of the Company, with the reservations and other privi- 
leges offered by His Grace the Duke of Buckingham and 
Chandos, is the sum indicated by the foregoing computations. 

We must, in conclusion, express to Earl Granville our 
strong conviction that no money offer, which either the Impe- 
rial or the Canadian Government would deem reasonable, 
will be accepted by the Company, and that to delay the orga- 
nization of constitutional government in the North-West 
Territory until the Hudson's Bay Company consent to reason- 
able terms of surrender, is to hinder the success of Confede- 



284 APPENDIX. 

ration in British America, and to imperil the interests and au- 
thority of the British Crown in the territories now occupied 
by the Company. 

We therefore respectfully submit for Earl Granville's con- 
sideration, whether it is not expedient that the Address of the 
Canadian Parliament be at once acted upon, under the autho- 
rity of the Imperial Act of 1867. 

But, if his Lordship should see any sufficient legal or other 
objection to that course, then we ask, on behalf of the Domin- 
ion Government, for the immediate transfer to that Govern- 
ment of the " North-West Territory," or all that part of Brit- 
ish North America, from Canada on the east, to British Colum- 
bia, Alaska, and the Arctic Ocean, on the west and north, not 
heretofore validly granted to and now held by " The Gover- 
nor and Company of Adventurers of England trading into 
Hudson's Bay," by virtue of a Charter of King Charles the 
Second, issued about the year 1670. 

We have the honour to be, 
Sir, 
Your obedient servants, 
(Signed) Geo. Et. Cartier. 

Wm. MacDougall. 
Sir Frederic Rogers, Bart., &c, 

Colonial Office. 



APPENDIX O. 

Extract from Vol. I, Pownall's Manuscripts, " Trade" 

(Page 64). 

A Deduction of the Right and Title of the Crown of Great 
Britain and therein, of Our Most Gracious Sovereign Lady, 
Queen Anne, to all the streights, bays, seas, rivers, lakes, 
creeks, islands, shores, lands, territories and places whatso- 
ever within Hudson's Streights and Hudson's Bay, and of 
the right and property of the Hudson's Bay Company, de- 
rived from the Imperial Crown of Great Britain by letters- 



APPENDIX. , 285 

patent of incorporation, and a free grant of all the premises 
from King Charles ye Second, Ao. 1670. 

That Hudson's Bay (with all that belongs thereto, within 
Hudson's Streights, in North America), was first discovered 
by Sr. Sebastian Cabbat, G-rand Pilot to King Henry the 
Seventh, who gave English names to several places of the 
said Bay. 

Sr. Martin Furbisher. in Queen Elizabeth's time, made three 
voyages to the said Bay in 1576, 1577 and 1578, and gave 
English names to several places there. 

Captain Davis made three voyages thither in the year 1585, 
1587 and 1588, and gave English names to several parts of 
the said Bay. 

Henry Hudson, an Englishman, sailed to the Streights and 
Bay, from him called Hudson's Streights and Hudson's Bay, 
and keeps that denomination to this day in all the authentic 
maps in ye world, and even in the maps of the best geog- 
raphery of France. The said Hudson stayed a whole winter 
there, took possession thereof in the name of the King of 
England, traded with the salvages, and gave names to several 
other parts of the Streights and Bay. 

Sir Thomas Button pursued the discovery and possessions 
of the aforesaid Hudson, sailed into the Streights and Bay 
with two ships, and particularly into Port Nelson, where he 
wintered, and buried the commander of his ship there, in 
memory of whom he gave it the name of Port Nelson, and 
called that particular bay Button's Bay (as it is still called in 
^he maps), took possession thereof in the name of his master, 
King James the First, and gave several other English names 
to other places in the Bay, and erected a cross there, declaring 
thereon the right of the Crown of England. 

Captain Luke Fox, by command of King Charles the First, 
made a voyage to Hudson's Bay, and amongst other places 
entered Port Nelson, and finding there the cross erected by 
Sir William Button, with the inscription defaced, and almost 
worn-out, he erected it again with a new inscription, declar- 



286 APPENDIX. 

ing the right and possession of his then Majesty King Charles 
the First, named the adjacent country New North Wales, and 
published a journal of his voyage. Note. — That the troubles 
and civil wars which soon after broke out in England, might 
be one principal cause why those voyages were not prose- 
cuted, trade in general then failing, and navigation and 
discoverys wanting the encouragement of the Government — 
till after the Restoration of King Charles the Second. Yet it 
is observable that all that while (for so many years) that those 
places and countries lay neglected and unfrequented of the 
navigation or commerce of any European nation. The French 
do not in the least pretend to have then visited those parts, to 
have formed a possession, or attempted any commerce with 
any people upon those coasts, nor do they pretend that ever 
any French vessel sailed Hudson's Streights or Hudson's Bay 
till of late years. 

It was, then, after the happy Eestoration of King Charles 
the Second, that trade and commerce began to revive, and in 
particular that from noblemen and other public-spirited Eng- 
lishmen, not unmindful of the discovery and right of the 
Crown of England to those parts in America, designed at 
their own charge to adventure the establishing of a regular 
and constant trade to Hudson's Bay, and to settle forts and 
factories, whereby to invite the Indian nations (who lived 
like savages, many hundred leagues up in the country), down 
to their factories, for a constant and yearly intercourse of 
trade, which was never attempted by such settlements, and 
to reside in that inhospitable country, before the aforesaid 
English Adventurers undertook the same. 

Wherefore, after a long time of consultation, and the neces- 
sary preparations for so great a charge, in the year 1667, one 
Zachary Grilham was provided of a ship and goods in London, 
sailed through Hudson's Bay to the bottom of the Bay, settled 
a trade, and built a fort there, which he called Charles Fort, 
on a river which he named Rupert's River, in honour to 
Prince Rupert, who was pleased to be concerned with, and 



APPENDIX. 28T 

was one of those Adventurers ; in which place the Hudson's 
Bay Company continued a trade, and had there a factory y 
until the same was unjustly taken from them by the French, 
in time of peace. 

Another voyage was undertaken by the same Adventurers, 
and one Captain Newland was sent, who entered Port Nel- 
son, settled there, and anew declared right and title of his 
Majesty to that river and .the countrys adjacent, and there 
fixed up his Majesty's Arms, as a mark of his sovereignty over 
the said places. 

After the charge of those voyages, and the experience by 
these settlements, that a great trade might be brought to Eng- 
land by beavers, furs and other commodities, for the just en- 
couragement of so good and public a benefit, and the persons 
that had laboured in it, his then Majesty King Charles the 
Second was graciously pleased, in the year 1670, according to 
the undoubted and inherent right of His Imperial Crown of 
England, by his Royal letters-patent to incorporate the said 
Adventurers, and to grant unto His Highness Prince Rupert,, 
the Duke of Albemarle, Earl of Craven, Lord Arlington, 
Lord Ashley and divers others and their successors for ever, 
all the lands and territories aforesaid, to be reckoned and re- 
puted as one of His Majesty's plantations and colonies in 
America, by the name of Rupert's Land, and further, to 
create and constitute them and their successors the true and 
absolute lords and proprietors of the same ; and of all the 
territories, limits and places thereto belonging, to have, hold, 
possess and enjoy the same for ever, as of His Majesty's 
mannor of East G-reenwich, in free and common soccage, &c 

In the same year the Company so incorporated sent out one 
Charles Baily as Governor of their factories and settlements 
in the Bay, with whom Monsieur Frontenac, then Governor of 
Canada, by letters and otherwise, entertained a good corres- 
pondence, not in the least complaining in several years of any 
pretended injury done to the French, by the said Companies 
settling a trade and building of Forts at the bottom of the Bay- 



288 APPENDIX. 

The said Charles Baily (as the Company's Governor) sent a 
ship from the bottom of the Bay, called the Imploy, to Port 
Nelson, to settle a trade there with the natives. 

As did also Captain Draper, with the ship Albemarle. 

But after about 15 years' labour and charge, continual 
voyages, Factorys and Settlements, and the trade with the 
natives established ; the French began to annoy this new and 
growing Trade, and thought it worth their while to study 
some pretences to invade and rob the English, and to deprive 
them of some part of the said country. 

When the English Company were building a Fort and settling 
a Trade at Port Nelson, the French, having formed a private ex- 
pedition at Quebec, in Canada, by confederacy of one La Chanay, 
and other private persons, came suddenly with two ships into 
the said river of Port Nelson, and with a stronger force sur- 
prised the said Company's men, and dispossessed them of 
their place and settlement, carried them prisoners to Canada, 
and pretended to settle a Trade there themselves ; but this was 
the first time that ever the French did sail a vessel into the 
Hudson's Bay since the beginning of the world. This was a 
piratical expedition, and the authors of it were prosecuted as 
such, by frequent memorials from hence at the Court of France, 
where the same was disowned by His most Christian Majesty, 
and satisfaction promised by him accordingly. - 

But as the French seldom want assurance for their preten- 
sions or claim to anything for their advantage ; so they never 
fail of artifice or force (when they can) to back such their 
pretences; and when by violence, rapine and murder, they 
got themselves into an unjust possession, as aforesaid, then 
they pretended to expostulate all by a treaty, (as if they were 
upon an even foot with the right possessor,) and they seconded 
this injurious invasion and assault, a year or two after, and by 
taking a ship of the Company's, one Edward Humes, Com 
mander, with the goods, and carried the men away prisoners, 
and for above a year fed them on bread and water. 

They formed a greater design, and went with a considerable 



APPENDIX. 289 

force overland, from Canada to the bottom of the Bay, and by- 
force or treachery, surprised and took all the Company's 
factorys, therewith all the amunition, goods, stores, and mer- 
chandize therein, to a very great value, murdered and des- 
troyed many of His Majesty's subjects ; and all these 
invasions, seizures and depredations were in a time of peace, 
and the best correspondence between the two Crowns ; which 
is an action scarce to be parallelled by any civilized nation ; 
when the way is open for complaints to the Prince on 
either side. 

Upon these repeated injuries, the said Company complained 
several times to His then Majesty King James the Second. 
Several memorials were presented at the French Court by the 
public Ministers then there, My Lord Preston, Sir Wm. Trum- 
bal, and Mr. Skelton ; at last his most Christian Majesty did 
appoint Commissioners to meet at London, to treat of those 
matters, and Monsieur Bonrepos was sent over hither, to be 
joined with Monsieur Bascillon, the French Ambassador in 
that affair, whereas many papers were exchanged on both 
sides (but were in that reign so advantageous to the French 
interest), they did not obtain one inch from the right of the 
Imperial Crown of G-reat Britain, nor from the property of the 
Hudson Bay Company. But on the contrary His then Majesty 
did declare, that his honour and the Company's interest were 
concerned therein and would have reparation for both. 

At His late Majesty, King William Third, his happy acces- 
sion to the Throne, the said Company put in a fresh petition 
and memorial to His Majesty, of their grievous suffering from 
the French, which His Majesty was greatly pleased to resent 
so far, that he made it one of the articles and grounds of a 
declaration of war against France. 

And then by thelate Treaty of E-yswick, Commissioners were 
appointed on both sides to examine and determine the rights 
and pretentions which either King had to the place, situated 
in Hudson's Bay ; before which Commissioners the right and 
title of the Crown of England to the whole Str eights and Bay of 



290 APPENDIX. 

Hudson was then clearly made out, which the French could 
never disprove ; yet they still most unjustly keep possession 
of the greatest part thereof, which if they be permitted to 
enjoy, they will become sole masters of all Her Majesty's 
dominions and territorys in those parts, which are of great 
extent, and the undoubted right of the Crown of Great Britain 
and of very great concern to all Her Majesty's subjects, 
especially to those that inhabit or trade to the Northern parts 
of Her Majesty's plantations in America. 



EXTKACT FROM VOL. 1, " TRADE," (PAGE 79,) POWNALL'S 

Manuscripts. 
A Memorial of the Hudson's Bay Company, 

Shewing : 

That the French, in a time of perfect amity between the 
two Kingdoms, viz. : 1682, did arbitrarily invade the Company's 
Territorys at Port Nelson, burn the houses and seize their 
effects. 

That in the year 1684 and 1685 they continued their depre- 
dations. 

That in the year 1686 they forcibly took from the Company 
three factorys, viz. : Albany Fort, Rupert Fort, and Moose 
River Fort, which violent proceedings they continued the 
year 1687 and 1688 ; the whole damages done to the Company 
by the French in time of peace amount to <£108,514 19s. 8d., as 
the Company are ready to make appear, besides interest for 
the same. 

That in the year 1685 they supplicated His then Majesty 
King James the Second, to interpose on their behalf; and, by 
His Ambassador at the Freneh Court, to demand reparation 
for the damages done to the Company, and restitution of their 
places unjustly taken from them by the French in time of 
peace : Whereupon Commissioners were appointed by His 
Majesty, viz. : The Earl of Sunderland, the Earl of Middleton, 



APPENDIX. 291 

and the Lord G-odolphin, (now Lord High Treasurer of 
Great Britain) to treat with the French Commissioners, before 
whom the Company clearly made out their right to the whole 
Bay and Streights of Hudson, to the satisfaction of the English 
Commissioners, who on the 16th of November, 1687, reported 
the right of the Company ; upon which King James was 
pleased to declare that he conceived the Company well 
founded in their demands, and therefore did insist upon his 
own right and the right of his subjects to the whole Bay and 
Streights of Hudson, and to the sole trade thereof; as also 
upon the demand of full satisfaction for the damages they had 
received, &c. The copy of which report, and of His Majesty's 
resolution thereupon, is hereunto annexed. This was trans- 
acted and declared towards the latter end of 1687, at which 
time, the Lord Churchill (now Duke of Marlborough) was 
Governor of the Company, and memorials were repeated by 
the said King's command at the French Court so pressingly 
for satisfaction and restitution, that the Company had certainly 
been relieved and restored to their rights, but for the war, 
which soon after broke out between the two Kingdoms. 

That upon His late Majesty King William's accession to 
the throne, the Company renewed their claim to their terri- 
tories, and for reparation of damages suffered from the French 
in times of full peace ; of which His said Majesty was so 
sensible, that he was pleased to make the proceedings of France 
in that affair one of the causes and articles of his declaration of 
war, against the French King in hcec verba. But that the 
French King should invade our Charibee Islands, and possess 
himself of our Territories of the Province of New York and 
of Hudson's Bay in a hostile manner, seizing our forts, burning 
our subjects' houses, and enriching his people with the spoil of 
their goods and merchandize, detaining some of our subjects 
under hardship of imprisonment, causing others to be inhu- 
manly killed, and driving the rest to sea in a small vessel, 
without food or necessaries to support them ; are actions not 
becoming an enemy ; and yet he was so far found declaring 



292 APPENDIX. 

himself so, that at that very time, he was negotiating here in 
England, by his ministers, a treaty of neutrality and good 
correspondence in America, so that the said Company did 
patiently wait for the end of that war, not doubting but to 
have justice done them when a peace was concluded. 

But so it was, that the Company found their interest not com- 
prehended in the treaty of Ryswick, which they are far from 
attributing to any want of care in that gracious Prince, of his 
Kingdom's honour and trade, and rather think their right and 
claim was then overweighed by matter of higher consequence 
depending in that juncture ; for by the said treaty they found 
their condition much worse than it was before, by the 8th 
article, whereof the French were to be left in possession of 
such places situated in Hudson's Bay, as had been taken by 
them during the peace which preceded that war. 

That at a meeting of Commissioners on both sides (as directed 
by the said treaty to adjust these differences) the Company 
did again set forth the undoubted right of the Crown of Eng- 
land to the whole Bay and Streights of Hudson, against which 
nothing but sophistry and cavils were offered on the French 
side, and the matter remained undetermined. 

That the only settlement now remaining to the Company 
in those parts (of seven they formerly had) is Albany Fort, or 
Checheowan, where they are surrounded on every side by the 
French, viz. : by their settlement on the lakes and rivers from 
Canada to the northward towards Hudson Bay — as also from 
Port Nelson (also York Fort) to the southward. The French 
likewise have lately made another settlement between Port 
Nelson and Albany Fort, whereby the Indians are hindered 
from coming to trade with the English factory at the bottom 
of the Bay, and if they are suffered to fix and fortify in those 
parts, beyond all question they will deprive Her Majesty's 
subjects of that tract of land, which is so large a part of her 
American dominion and rightfully belongs to the Crown of | 
Great Britain. 

That not only Her Majesty's glory is concerned to preservel 



APPENDIX. 293 

those plantations, but it very much imports the general trade 
of her kingdom, since the Company, notwithstanding the 
losses and discouragements they have laboured under and 
during the war, have brought from thence between 30,000 
and 40,000 skins per annum, and doubt not, if they were re- 
instated in their right according to their Charter, to bring the 
said importation to 100,000 skins per annum. 

That the said country does abound with several other com- 
modities (of which the company have not been able to begin 
trade, by reason of the interruptions from the French), as 
with whale-oil, whalebone (of which last Her Majesty's sub- 
jects now purchase from Holland and Germany, to the value 
of £26,000 per annum), which might be had in her own plan- 
tations, besides many other valuable commodities which in 
time may be discovered. 

That if the French come once to be entirely possessed of 
Hudson's Bay, they will undoubtedly get up a whale-fishing 
in those parts, which will greatly tend to the increase of their 
navigation, and to their breed of seamen. 

That there is carried thither and consumed there, nothing 
but of the product and manufactures of England, the Com- 
pany encouraging a daily bringing the Indians to wear coarse 
cloth instead of skins, which in process of time will consider- 
ably advance the woollen trade at home. 

That it must needs reflect on the honour of Britain, to re- 
linquish to the French that territory, of which their violent 
usurpation in a time of peace, was alleged as a main Article 
in the first Declaration of War against that kingdom. 

That if the French could pretend to any right to the said 
territories by the Peace of Byswick, this right must needs be 
determined by their notorious infraction of the said Treaty. 

The premises considered, when Her Majesty in her high 
wisdom shall think to give peace to those enemies, whom her 
victorious arms have reduced and humbled, and when Her 
Majesty shall judge it for her people's good to enter into a 
Treaty of Peace with the French King, the Company pray 



294 APPENDIX. 

that the said Prince be obliged by such treaty to renounce all 
right and pretentions to the Bay and Streights, to quit and 
surrender all forts and settlements erected by the French, or 
which are now in their possession, as likewise not to sail any 
ship or vessel within the limits of the Company's Charter, 
and to make restitution of the <£108,514 19s. 8d. of which 
they robbed and despoiled the said Company in times of per- 
fect amity between the two kingdoms. 



Report of the English Commissioners appointed to treat 
with the French, concerning damages sustained by the 
Hudson's Bay Company, &c., 1687. Together with His 
Majesty's resolutions thereupon. 

The English Commissioners' Report made in the Year 1687. 

We your Majesty's Commissioners appointed to treat with 
the Ambassador and Envoy Extraordinary of His Most 
Christian Majesty concerning the differences that have hap- 
pened, or may, to your Majesty or the French in America, 
have had frequent conferences with the said Ambassador and 
Envoy Extraordinary, in order to obtain satisfaction for the 
damages your Majesty's subjects have lately sustained from 
the French in Hudson's Bay, with restitution of the three 
forts which by surprise were seized on by them ; as also 
touching several other differences depending between the 
two Crowns ; and as to the business of Hudson's Bay, having 
already acquainted your Majesty with our proceedings 
therein. We do further add, as our humble opinion, that it 
plainly appears your Majesty and your subjects have a right 
to the whole Bay and Streights of Hudson, and to the sole 
trade thereof, so it may be fit for your Majesty to support the 
said Company of Hudson's Bay in the recovery and main- 
tenance of their right, since otherwise that trade will be 
totally lost, and fall into the hands of the French, if they be 
permitted to continue in the possession of those forts, or of 
any fort or place within the said Bay or Streights. 



APPENDIX. 295 

His Majesty *s Resolution Thereupon. 

Whereupon His Majesty did declare, that having maturely 
considered his own right and the right of his subjects to the 
whole Bay and Streights of Hudson, and having been also 
informed of the reasons alleged on the part of the French, to 
justify their late proceeding in seizing three forts, which for 
many years past have been possessed by the English, and in 
committing several acts of hostility, to the very great damage 
of the English Company of Hudson's Bay. 

His Majesty upon the whole matter did conceive the said 
Company well founded in their demands, and therefore did 
insist upon his own right and the right of his subjects to the 
whole Bay and Streights of Hudson, and to the sole trade 
thereof, as also upon the demand of full satisfaction for the 
damages they have received, and restitution of the three forts 
surprised by the French, in the bottom of the Bay. 



Hudson's Bay. 

January 10th. — Representation from the Board relating to 
Forts, &c, on the continent of America. Vide New Y ork D. 
fo. 79. 

January 22nd — Proposals of the Governor and Company of 
Hudson's Bay about their boundaries, with the French. Jour- 
nal E. fo. 326. N. fo. 87. 

The limits which the Hudson's Bay Company conceive to 
be necessary as boundaries between the French and them in 
case of an exchange of places, and that the Company cannot 
obtain the whole Streights and Bay, which of right belongs to 
them, viz. : 

1. That the French be limited not to trade by wood-runners, 
or otherwise, nor build any House, Factory, or Fort, beyond 
the bounds of 53 degrees, or Albany river, vulgarly called 
Chechewan, to the northward, on the west or main coast. 

2. That the French be likewise limited not to trade by wood- 
runners, or Fort, beyond Rupert's River, to the northward, 
on the east main or coast. 



296 APPENDIX. 

3. On the contrary, the English shall be obliged not to trade 
by wood-runners, or otherwise, nor building House, Factory, 
or Fort, beyond the aforesaid latitude of 53 degrees, or Albany 
river, vulgarly called Checheawan, south-east towards Canada, 
on any land which belongs to the Hudson's Bay Company-. 

4. As also the English be likewise obliged not to trade by 
wood-runners, or otherwise, nor build any House, Factory, 
or Fort, beyond Rupert's river, to the south-east, towards 
Canada, on any land which belongs to the Hudson's Bay 
Company. 

5. As likewise, that neither the French or English shall at any 
time hereafter extend their bounds contrary to the aforesaid 
limitations, nor instigate the natives to make war, or join with 
either, in any acts of hostility to the disturbance or detriment 
of the trade of either nation, which the French may very 
reasonably comply with, for lhat they by such limitations will 
have all the country south-eastward betwixt Albany Fort and 
Canada to themselves, which is not only the best and most 
fertile part but also a much larger tract of land than can be 
supposed to be to the northward, and the Company deprived 
of that which was always their undoubted right. 

And unless the Company can be secured according to these 
propositions they think it will be impossible for them to con- 
tinue long at York Fort, (should they exchange with the 
French) nor will the trade answer their charge ; and therefore 
if your Lordships cannot obtain these so reasonable proposi- 
tions from the French, but that they insist to have the limits 
settled between Albany and York, and Albany Fort, as in the 
latitude of 55 degrees or thereabouts, the Company can by 
no means agree thereto, for they by such an agreement will 
be the instruments of their own ruin never to be retrieved. 

By order of the Grove rnment Court, 

(Signed) ¥m. Potter, 

Secretaiy. 
Confirmed by the Court ) 

of the said Company, 

10th July, 1700. \ 






APPENDIX. 297 

January 23rd. — Letter to the Governor, &c, of Hudson's 
Bay, relating to settlement of the boundaries with the French. 

To the Governor and Deputy Governor of the Hudson Bay Com- 
pany or either of them. Journal E. 327. Ans. fo. 97. 

Gentlemen : — Upon consideration of what was this day offer- 
ed to the Lords Commissioners for Trade and Plantations, by 
yourselves and other members of the Hudson's Bay Company, 
their Lordships have commanded me to acquaint you with their 
desire, that the Resolution of your Court may be 

taken and communicated to them, whether (in case the French 
cannot be prevailed with to consent to the settlement of the 
boundaries proposed by your Court of the 10th of 

July last), the said Court will not think fit to consent, that the 
limits on the east side of the Bay be extended to the latitude 
of 52J degrees, with whatever further that Court may think 
advisable to propose, in reference to their own affairs, for the 
more easy settlement of all disputes between the Company 

and the French in Hudson's Bay. 

W. P. 
Whitehall, January 22nd, 170?. 



February 12th. — Proposals from the Governor and Company 
of Hudson's Bay for settling the limits with France. 

To the Right Honourable the Lords Commissioners for Trade 
and Plantations. Journal E. 354. 

The Hudson's Bay Company having lately exhibited to 
your Lordships their Resolution of their Court, the 

10th of July last, concerning limits between them and the 
French in Hudson's Bay, and though the Company cannot but 
still insist upon their undoubted right to the whole Bay and 
Streights of Hudson, as has been clearly made out by them* 
Fo. 73. Fo. 81. 

Yet in obedience to your Lordships' letter of the 22nd inst., 



298 APPENDIX. 

and to show how desirous they are to comply therewith as 
much as in them lies, and is consistent with their future 
safety, they do further offer to your lordships the following 
proposals of limits between them and the French in Hudson's 
Bay, viz. : 

1. That the French be limited not to trade by wood- 
runners or otherwise, nor build any House, Factory, or Fort 
to the northward of Albany river, vulgarly called Chechea- 
wan, on the west main or coast. 

2. That the French be likewise limited not to trade by 
wood-runners or otherwise, nor build any House, Factory, or 
Fort to the northward of Hudson's river, vulgarly called 
Canute river, on the east main or coast. 

3. On the contrary, the English, upon such an agreement, 
do engage not to trade by wood-runners, nor build any House, 
Factory, or Fort to the southward of Albany river, vulgarly 
called Checheawan, on the west coast, on any ground belong- 
ing to the Hudson's Bay Company. 

4. As also, the English be likewise limited not to trade by 
wood-runners or otherwise, nor build any House, Factory, or 
Fort to the southward of Hudson's river, vulgarly called 
Canute river, on the east coast, on any ground belonging to 
the Hudson's Bay Company. 

5. That all the islands in the said Bay and Streights of 
Hudson, lying to the northward of Albany river, on the west 
coast, and of Hudson's river, vulgarly called Canute river, 
on the east coast, shall be and remain to the English. 

6. Likewise that all the islands in the said Bay of Hudson, 
lying to the southward of Albany river, on the west coast, 
and of Hudson's river, vulgarly called Canute river, on the 
east coast, shall be and remain to the French. 

7. That neither the French or English shall at any time 
hereafter extend their bounds contrary to the aforesaid limita- 
tions, or instigate the natives to make war, or join with either 
in any acts of hostility, to the disturbance or detriment of the 
trade of either nation. 



APPENDIX. 299 

These terms the Company are willing to agree to, upon 
condition they may be secured from any claim that has been 
or may be made on them, by virtue of the 8th Article of the 
Treaty of Eyswick, or by any other matter or thing relating 
to the said Treaty. And if the French think fit to accept 
thereof, the Company are willing to exchange places with 
them, but not without settling of limits ; for that the said 8th 
Article which saith there shall be an exchange of places, doth 
also say, that limits shall be likewise settled, and it would 
seem very unreasonable that one should be performed with- 
out the other. As to the Company's naming of rivers as 
boundaries, and not latitudes, the same is more certain and 
obvious, both to the natives as well as Europeans, and the 
contrary impracticable, nor can the latitude be so well laid 
down in that wild country, the Indians well knowing the 
one, but not the other. 

But should the French refuse the limits now proposed by 
the Company, the Company think themselves not bound by 
this or any formor concessions of the like nature, but must r 
as they have always done, insist upon their prior and un- 
doubted right to the whole Bay and Streights of Hudson, 
which the French never yet would strictly dispute, or suffer 
to be examined into (as knowing the weakness of their claim),, 
though the first step in the said Article of By s wick directs 
the doing of it. 

By Order of the G-eneral Court of the said Company. 

(Signed) Wm. Potter, 

Secretary. 
January 29th, 170f . 



To the Deputy Governor of the Hudson's Bay Company. 

The Lords Commissioners for Trade and Plantations have 
commanded me to signify to you their desire that the Hud- 
son's Bay Company would lay before them whatever they 



SOO APPENDIX. 

may think fit to offer in relation to the trade and security of 
that place at this time. 

I am, 

Sir, 

Your most humble servant, 

W. P. 
Whitehall, January 9th, 170|. 



[Memorandum from the Hudson's Bay Company, represent- 
ing the state of your affairs at present, and what they 
desire.] 

To the Honourable the Lords Commissioners for Trade and 

Plantations. 

The humble representation of the Governor and Company 
of Adventurers of England trading into Hudson's Bay, 

Sheweth : 

That the said Company, being required by your Lordships 
to give in what they thought necessary in relation to their 
trade, and the security of their factory in Hudson's Bay, do 
with all submission lay before your Lordships the true state 
and condition thereof. 

They will not trouble your Lordships with a repetition of 
their undoubted rights to all Hudson's Bay, and that the 
French never laid claim to the same, or ever sailed a ship or 
vessel into those parts since the creation of the world, till the 
year 1682 (many years after the incorporation of this Com- 
pany), and then in a piratical manner, without any commis- 
sion or authority from His Most Christian Majesty, who was 
afterwards pleased to disown the said proceeding, as the 
Company have and are still ready to prove. 

These matters have been so fully and clearly made out by 
them that even the French themselves, with all their sophis- 
try and equivocation, have not been able to disprove. 



APPENDIX. 301 

Therefore we shall proceed to inform your Lordships of the 
present melancholy prospect of their trade and settlement in 
Hudson's Bay, and that none of His Majesty's plantations are 
left in such a deplorable state as those of this Company, for 
by their great losses by the French, both in times of peace as 
well as during the late war, together with the hardships they 
lie under by the late Treaty of Ryswick, they may be said to- 
be the only mourners by the peace. 

They cannot but inform your lordships that the only settle- 
ment the Company hare now left in Hudson's Bay (of seven 
they formerly possessed) is Albany Fort, vulgarly called Che- 
cheawan, in the bottom of the said Bay, where they are sur- 
rounded by the French on every side, viz., by their settle- 
ments on the lakes and rivers from Canada to the northwards, 
towards Hudson's Bay, as also from Port Nelson (Old York 
Fort) to the southward ; but besides this, the Company have, 
by the return of their ship this year, received certain intelli- 
gence that the French have made another settlement at a 
place called New Severn, 'twixt Port Nelson and Albany 
Fort, whereby they have hindered the Indians from coming 
to trade at the Company's factory, at the bottom of the Bay y 
so that the Company this year have not received above one- 
fifth part of the returns they usually had from thence, inso- 
much that the same doth not answer the expense of their ex- 
pedition. 

The Company being by these and other their misfortunes 
reduced to such a low and miserable condition, that, without 
His Majesty's favour and assistance, they are in no ways able 
to keep that little remainder they are yet possessed of in 
Hudson's Bay, but may justly fear in a short time to be de- 
prived of all their trade in those parts, which is solely nego- 
tiated by the manufacturers of this kingdom. 

Upon the whole matter, the Company humbly conceive 
they can be no ways safe from the insults and encroachments 
of the French, so long as they are suffered to remain pos- 
sessed of any place in Hudson's Bay, and that in order to dis- 



302 APPENDIX. 

lodge them from thence (which the Company are no ways 
able to do), a force of three men-of-war, one bomb vessel, and 
two-hundred- and -fifty soldiers, besides the ship's company, 
will be necessary, whereby that vast tract of land which is of 
so great concern, not only to this Company in particular, but 
likewise to the whole nation in general, may not be utterly 
lost to this kingdom. 

All which is humbly submitted to your lordships' great 
wasdom and judgment. 

By the Governor and Company of Adventurers of England 
trading into Hudson's Bay. 

W. Potter, 

Secretary. 
Hudson's Bay House, the 19th January, 170 J. 



January 24th. 
Bepresentation upon the State of Defence of Hudson's Bay. 

(vide Plan. G-en.) 



Letter to the Governor of the Hudson's Bay Company, for 
an account of the encroachments made by the French 
within the limits of the Charter. 

To the Governor or Deputy Governor of the Hudson's Bay 

Company. 

Sir, — The Lords Commissioners of Trade and Plantations, 
having under consideration some matters relating to the 
French encroachments upon Her Majesty's dominions in 
America, they have commanded me to desire that you will let 
them have as soon as possibly you can, an account of such 
encroachments as the French have made upon the territories 
and places within the limits of the said Company's Charter. 

I am, 

Sir, 

Your most humble servant, 

Wm. Popple 
Whitehall, May 19th, 1709. 



APPENDIX. 303 

May 23rd, 1709. 

Petition to Her Majesty, setting forth their right and title to 
that place, and praying restitution may be insisted upon 
from the French for the robberies committed by them in 
times of perfect amity, &c. 

(Bundle A, 46.) 



June 2nd, 1709. 

Letter to Mr. Secretary Boyle, with a representation con- 
taining a state of Her Majesty's right to places in the West 
Indies possessed or claimed by the French, as also an ac- 
count of places taken on either side in those parts during 

the present war. 

(vide Plan. Gen.) 



December 21st, 1711. 

Petition from the Governor and Company of Adventurers 
of England trading into Hudson's Bay, to Her Majesty, 
praying that at a Treaty of Peace, the French may be 
obliged to renounce all right to the said Bay, &c. 

To the Queens Most Excellent Majesty. 

The Petition of the Governor and Company of Adventu- 
rers of England trading into Hudson's Bay, 

Humbly Sheweth : 

That your petitioners are far frcm enquiring into the great 
affairs of your Majesty's glorious Government, especially as 
what relates to war and peace, both which they know your 
high wisdom will so order as shall be most for the good of 
your whole people ; but believing the justice of your cause 
and the terror of your arms must soon reduce the French 



304 APPENDIX. 

King to sue for such a peace as all Europe desires and wants, 
your petitioners crave leave with the profoundest duty, to 
submit the hardships of their case to your Eoyal consideration. 

That the French, in a time of perfect amity between the 
two kingdoms, viz., Anno 1682, did arbitrarily invade the 
Company's territorys at Port Nelson, burn their houses, and 
seize their effects. 

That in the years 1684 and 1685, they continued their depre- 
dations. 

That in the year 1686, they forcibly took from the Company 
three Factories, viz : Albany Fort, Rupert and Moose River 
Fort, which violent proceedings they continued the years 
1687 and 1688, the whole damages done by the French to the 
Company in times of peace amounting to ,£108,514 19s. 8d., as 
your petitioners are ready to make appear, besides interest for 
the same. 

That in the year 1685, they supplicated his then Majesty 
King James the Second to interpose on their behalf, and by 
his Ambassadors at the French Court to demand reparation 
for the damages done to the Company, and restitution of the 
places unjustly taken from them by the French in times of 
peace: whereupon Commissioners were appointed by His 
Majesty, viz., the Earl of Sunderland, the Earl of Middleton, 
and the Lord G-odolphin to treat with the French Commis- 
sioners, before whom the Company clearly made out their 
right to the whole Bay and Streights of Hudson, — to the satis- 
faction of English Commissioners, who, on the 10th November, 
1687, reported the right of your petitioners, upon which King 
James was pleased to declare, that he conceived the Company 
well founded in their demands, and therefore did insist upon 
his own right, and the right of his subjects to the whole Bay 
and Streights of Hudson, and to the soletra.de thereof; as also 
upon the demand of full satisfaction for the damages they had 
received, &c. The copy of which report and His Majesty's 
resolutions thereon, is hereunto annexed. This was trans- 
lated and declared towards the latter end of 1687, at which 



APPENDIX. 305 

time the Lord Churchill, Duke of Marlborough, was Governor 
of the Company, and memorials were repeated by the said 
King's Command at the French Court so pressingly for satis- 
faction and restitution, that your petitioners had certainly been 
relieved and restored to their rights, but for the war, which 
soon after broke out between the two Kingdoms. 

That upon the late King William's accession to the Throne, 
the Company renewed their claim to their territories and for 
reparation of damages sufficient from the French in times of 
full peace, of which His said Majesty was so sensible, that he 
was pleased to make the proceedings of France in that affair 
one of the causes and articles of his declaration of war against 
the French King in hsec Yerba. " But that the French King 
should invade our Charibbee Islands and possess himself of 
our territories of the Province of New York and Hudson's 
Bay in an hostile manner, seizing our Forts, burning our 
subjects' houses, and enriching his people with the spoil of 
their goods and merchandizes, detaining some of our subjects 
under the hardships of imprisonment, causing others to be 
inhumanly killed, and driving the rest to sea in a small 
vessel, without food and necessaries to support them, are 
actions not even becoming an enemy, and yet he was so far 
from declaiing himself so, that at that very time he was 
negotiating here in England by his Ministers, a treaty of 
neutrality and good correspondence in America," so that 
your petitioners did patiently wait the end of that war, not 
doubting but to have justice to them, when a peace was con- 
cluded. 

But so it is, may it please your most Excellent Majesty, 
that the Company found their interest not comprehended 
in the Treaty of Ryswick, which they are far from attributing 
to any want of care in that gracious Prince of this Kingdom's 
honour and trade, and rather think their rights and claims 
were then overweighed by matters of higher consequence 
depending in that juncture ; for by the said treaty they found 

their condition much worse than it was before. By the 8th 

v 



306 APPENDIX. 

article whereof, the French we left in possession of such places 
situated in Hudson's Bay, as had been taken by them during 
the peace which had preceded that war. 

That at a meeting of Commissioners on both sides (as directed 
by the said treaty, to adjust these differences) the Company 
did again set forth the undoubted right of the Crown of Eng- 
land to the whole Bay and Streights of Hudson, against which 
nothing but sophistry and cavils were offered on the French 
side, and the matter remained undetermined. 

That the only settlement now remaining to the Company in 
those parts (of seven they formerly had) is Albany Fort, on 
the Checheawan, where they are surrounded by the French 
on every side, viz. : By their settlements on the lakes and 
rivers from Canada to the northward towards Hudson's Bay, 
as also from Port Nelson (at York Fort) to the southward ; the 
French have likewise made another settlement between Port 
Nelson and Albany Fort, whereby the Indians are hindered 
from coming to trade with the English factory, at the bottom 
of the Bay, and if they are suffered to fix and fortify in those 
parts, beyond all question they will deprive your Majesty's 
subjects of that tract of land, which is so large a part of your 
American dominions, and rightly belongs to the Crown of 
Great Britain. 

That not only your Majesty's glory is concerned to preserve 
those plantations, but it very much imports the general trade 
of your Kingdom. Since your petitioners, notwithstanding 
the losses and discouragements they have laboured under, and 
during the war, have brought from thence between 30,000 
and 40,000 skins per annum, and doubt not if they w r ere re- 
instated in their possessions, according to their charter, to bring 
the said importation to 100,000 skins per annum. 

That the said country doth abound wdth several other com- 
modities (of which your petitioners have not been able to 
begin a trade, by reason of the interruptions they have met 
with from the French) as with whale byt. whale-bone, (of 
w T hich last your subjects now purchase from Holland and 






APPENDIX. 307 

Germany, to the value of about £26,000 per annum, which 
may be had in your own dominions) besides many other valu- 
able commodities, which in time may be discovered. 

That if the French come once to be entirely possessed of Hud- 
son's Bay, they will undoubtedly set up whale fishing in those 
parts, which will greatly tend to the increase of their navigation, 
and to their breed of seamen. 

That there is carried thither, and consumed there, nothing 
but of the product and manufacture of England, your petition- 
ers encouraging and daily bringing the Indians to wear coarse 
cloth instead of skins, which in process of time will consider- 
ably advance the woollen trade at home. 

That it needs must reflect upon the honour of Britain to 
relinquish to the French that territory, of which their violent 
usurpation in a time of peace was alleged as a main article in 
the first declaration of war against that Kingdom. 

That if the French could pretend to any right to the said 
territories by the peace of Byswick, this right must needs be 
determined by their notorious infraction of the said treaty. 

The premises considered, when your Majesty, in your high 
wisdom, shall think fit to give peace to those enemies whom 
your victorious arms have so reduced and humbled , and when 
your Majesty shall judge it for your people's good to enter 
unto a treaty of peace with the French King ; your petitioners 
pray that the said Prince be obliged, by such treaty, to renounce 
all right and pretensions to the Bay and Streights of Hudson, 
to quit and surrender all posts and settlements erected by the 
French, or which are now in their possession, as likewise not 
to sail any ships or vessels within the limits of the Company's 
charter, and to make restitution of the £108,514 19s. 8d., of which 
they robbed and despoiled your petitioners in times of perfect 
amity between the two Kingdoms. 

And your petitioners, as in duty bound, shall ever pray. 



308 APPENDIX. 

Memorandum from the Hudson's Bay Company, containing 
what they desire may be stipulated for them at the ensuing 
Treaty of Peace. 

To the Right Honourable the Lords Commissioners of Trade and 

Plantations. 

The Memorandum of the Governor and Company of Ad- 
venturers of England trading into Hudson's Bay. 

That for avoiding all disputes and differences that may in 
time to come arise between the said Company and French, 
settled in Canada, they humbly represent and conceive it 
necessary : 

That no wood-runners, either French or Indians, or any] 
other person whatsoever, be permitted to travel, or seek for 
trade beyond the limits hereafter mentioned. 

That the said limits begin from the island called G-rimington's 
Island, or Cape Perdrix, in the latitude of 58 J north, which 
they desire may be the boundary between the English and 
French, on the coast of Labrador, towards Rupert's Land, 
on the east main, and Nova Britannia on the French side, and 
that no French ship, barque, boat or vessel whatsoever, shall 
pass to the northward at Cape Perdrix, or G-rimington's 
Island, towards or into the Streights or Bay of Hudson, on any 
pretence whatsoever. 

That a line supposed to pass to the south-westward of the 
said Island of G-rimington, or Cape Perdrix, to the great Lake 
Miskosinke at Mistoveny, dividing the same into two parts,, 
(as in the map now delivered), and that the French nor any 
others employed by them, shall come to the north or north-, 
westward of the said lake, or supposed line, by land or water,i 
on or through any rivers, lakes, or countries, to trade, or erect 
any forts or settlements whatsover, and the English, on thej 
contrary, not to pass the said supposed line either to the south- 
ward or eastward. 

That the French be likewise obliged to quit, surrender an 



APPENDIX. 309 

deliver up to the English, uponfdemand, York Fort (by them 
called Bourbon), undemolished ; together with all forts, factories, 
settlements, and buildings whatsoever, taken from the English, 
or since erected, or built by the French, with all the artillery 
and ammunition, in the condition they are now in ; together 
with all other places they are possessed of within the limits 
aforesaid, or within the Bay and Streights of Hudson. 

These limits being first settled and adjusted, the Company 
are willing to refer their losses and damages formerly sustained 
by the French in times of peace, to the consideration of Com- 
missioners to be appointed for that purpose. 

By order of the Governor and Company of Adventurers of 
England trading into Hudson's Bay. 

Hudson's Bay House, 1th February, 17y|. 

Note. — The said Company are by their Charter constituted 
Lords Proprietors of all those lands, territories, seas, streights, 
bays, rivers, lakes and soundings, within the entrance of 
the streights, to hold the same, as of Her Majesty's manor of 
East Greenwich, in the County of Kent. 



To the Right Honourable the Earl of Dartmouth. 

My Lord: — In obedience to Her Majesty's commands, 
signified to us, we have considered the enclosed Petition from 
the Hudson's Bay Company to Her Majesty, and are humbly 
of opinion, that the said Company have a good right and just 
title to the whole Bav and Streights of Hudson. 

Since the receipt of which petition, the said Company have 
delivered us a memorial, relating to the settlement of boundaries 
between them and the French of Canada, a copy whereof is 
enclosed, and upon which we take leave to offer, that as it will 
be for the advantage of the said Company, that their bound- 
aries be settled, it will also be necessary that the boundaries 
between Her Majesty's colonies on the continent of America 



310 APPENDIX 

and the said French of Canada be likewise agreed and settled : 
wherefore we humbly offer these matters may be recommended 
to Her Majesty's Plenipotentiaries at Utrecht. 
We are, 

My Lord, 
Your Lordship's most obedient, and most humble servants, 

WlNCHELSEA. 

Ph. Meadows. 
Chas. Turner. 

GrEO. BAILLIE. 

Arth. Moore. 

FRA. GrWYN. 



Whitehall, February 19th, 17i 



Right Honourable Earl of Dartmouth. 



Letter from the Earl of Dartmouth, 27 'th May, 1713, referring 
to the Board of Petition of Hudson's Bay Company, about 
taking possession of the places and territories belonging to 
the said Company, which were late in the power of the 
French. 

To the Right Honourable the Lords Commissioners of Trade 
and Plantations. 

My Lords and G-entlemen, — The Queen has commanded 
me to transmit to you the enclosed Petition of the Hudson's Bay 
Company that you may consider of it and report your opinion, 
what orders may properly be given upon the several particulars 
mentioned. In the meantime I am to acquaint you that the 
places and countries therein named, belonging of right to British 
subjects, Her Majesty did not think fit to receive any Act of Ces- 
sion from the French King, and has therefore insisted only upon 
an order from that Court for delivering possession to such 
persons as should be authorised by Her Majesty to take it ; 
by this means the title of the Company is acknowledged, and 



APPENDIX. 311 

they will come into the immediate enjoyment of their property 
without further trouble. 
I am, 

My Lords and Gentlemen, 

Your most humble servant, 

Trri-. i i, ™ ^ Dartmouth. 

Whitehall, May 27th, 1713. 



June 1st, 1713. 

To the Queen's Most Excellent Majesty. 

The humble petition of the Governor and Company of Ad- 
venturers of England trading in the Hudson's Bay, 
Sheweth : 

That your petitioners, being informed that the Act of Ces- 
sion is come over, whereby (among other matters thereby 
concerted), the French King obliges himself to restore to 
your Majesty (or to whom your Majesty shall appoint to take 
possession thereof; the Bay and Streights of Hudson, together 
with all the lands, seas, sea-coasts, rivers and places situate in 
the said Bay and Streights, as also all forts and edifices what- 
soever, entire, and not demolished, together with guns, shot, 
powder and other warlike provisions (as mentioned in the 
10th Article of the present Treaty of Peace), within six 
months after the ratification thereof, or sooner, if possible it 
may be done. 

Your petitioners do most humbly pray your Majesty will 
be graciously pleased to direct the said Act of Cession may 
be transmitted to your petitioners, as also your Majesty's 
commission to Captain James Knight and Mr. Henry Kelsey, 
gentleman, to authorise them, or either of them, to take pos- 
session of the premises above mentioned, and to constitute 
Captain James Knight to be Governor of the fortress called 
Port Nelson, and all other forts and edifices, lands, seas, rivers 
and places aforesaid, and the better to enable your petitioners 
to recover the same, they humbly pray your Majesty to 



312 APPENDIX. 

give orders that they may have a small man-of-war to depart 
with their ship, by the 12th day of June next ensuing, which 
ship may in all probability return in the month of October. 
And your petitioners as in duty bound shall ever pray. 

By Order of the Company. 

per ¥m. Potter, 
Secretary. 

Letter from the Lord Yiscount Bolingbrooke, of \Mh April, 
1714, referring to the Board a memorandum of the Hud- 
son's Bay Company ; a petition on behalf of the inhabitants 
of Mountserrat ; and an extract of a letter from Mr. Fleet- 
wood, consul at Naples. 

To the Right Honourable the Lords Commissioners of Trade and 

Plantations. 

My Lords, — I send your lordships enclosed, by . the 
Queen's command, a memorandum of the Governor and 
Company of Hudson's Bay, and a petition of several persons 
on behalf of themselves and the inhabitants of Mountserrat. 
It is Her Majesty's pleasure that your lordships should con- 
sider the said memorandum and petition, as likewise the seve- 
ral matters which are referred to commissaries by the tenth, 
eleventh, and fifteenth Articles of the late Treaty of Peace 
with the Most Christian King, and upon the whole make 
your representation, to be laid before Her Majesty, for her 
further pleasure therein.. 

By the enclosed extract of a letter from Mr. Fleetwood, 
Her Majesty's Consul at Naples, your lordships will see that 
he desires to have leave to come to England ; but the Queen 
has thought fit, before she grants his request, to direct your 
lordships to inquire whether his coming away will be of pre- 
judice to trade in those parts. 

I am, 

My Lords, 

Your most humble servant, 

Bolingbrooke. 
. Whitehall, April 13th, 1714. 



' APPENDIX. 313 

April 14th. 
Memorial from the Hudson's Bay Company. 

To the Queen s Most Excellent Majesty. 

The humble memorial of the Governor and Company of 
Adventurers of England trading into Hudson's Bay. 

That the said Company do with the utmost gratitude return 
your Majesty their most humble and hearty thanks for the 
great care your Majesty has taken for them by the Treaty of 
Utrecht, whereby the French are obliged to restore the whole 
Bay of Hudson and the Streights, being the undoubted right 
of the Crown of Great Britain. 

And whereas by the 11th Article of the said Treaty, satis- 
faction is to be made to the said Company for all damages 
sustained from the French in times of peace, for which com- 
missaries are to be named on both sides to adjust the same. 

The said Company humbly presume to acquaint your 
Majesty that whenever your Majesty in your great wisdom 
shall think fit to name commissaries for that purpose, they are 
ready to make out their demand of damages sustained from 
the French, according to the said 11th Article. 

All which they nevertheless submit to your Majesty's wis- 
dom and goodness. 

The Hudson's Bay Company, 

Wm. Potter, 

Secretary . 



To the Right Honourable the Lord Viscount Bolingbrooke. 

My Loud, — In obedience to Her Majesty's commands, sig- 
nified to us by your Lordship's letter of the 13th of the last 
month, we have considered the Memorial of the Governor 
and Company of Hudson's Bay, and the Petition relating to 
Mountserrat, and thereupon take leave to offer, that Her Ma- 
jesty be pleased to signify to the Court of France the neces- 



314 APPENDIX. 

sity of appointing commissaries to treat of several matters 
pursuant to the 10th, 11th, and 15th Articles of the Treaty of 
Peace with France, we being informed that the French com- 
missaries who are here, have not full powers to treat on those 
matters ; and as soon as we have their answer, we shall lay 
it before your lordship. 

My Lord,. 

Your Lordship's most obedient and most humble servants, 

GrUILFORD. 

E. MoNCKTON. 

Arthur Moore. 
Jno. Cotton, 
Jno. Sharpe. 
Samuel Pytts. 

Thos. Vernon. 

June 18th, 



To Wm. Popple, Esq. 

Sir, — I, being one of the Commissioners for the Hudson's 

Bay Company, give me leave to take this opportunity to 

inform you we are sending a gentleman to take possession of 

our country very speedily. If the Lords have any commands 

touching the memorial lately presented to Her Majesty by us, 

relating to the damages the French did us in times of peace, this 

gentleman who was in Hudson's Bay at that time, can give their 

Lordships some information in that matter. 

I am, 

Your very humble servant, 

Jno. Pery. 
June 3rd, 1714. 



August 3rd. 

Abstract of the damages the Hudson's Bay Company have 
sustained by the French in time of peace. 

A. 58. 



APPENDIX. 315 

Memorandum from the Hudson's Bay |Company describing 
limits which they desire may he fixed between them and the 
places appertaining to the French, &c. 

To the Right Honourable the Lords Commissioners of Trade and 

Plantations. 

The humble representation of the G-overnor and Company 
of Adventurers of England trading into Hudson's Bay, 

Sheweth : 

That pursuant to the 10th article of the Treaty of Utrecht, 
they did, the beginning of June last, send a ship for Hudson's 
Bay, and therein a Governor, one Captain Knight, and his 
Deputy, one Mr. Kelsey, to take possession of the whole Bay 
and Streights of Hudson, together with all other places relating 
thereto, as mentioned in the said articles, they having not only 
her late Majesty, (of blessed memory) her commission for the 
same purpose, together with one from the Company, but like- 
wise the most Christian King's order, under his hand and 
seal, with a power from the Canada Company, to deliver up 
the same according to the said treaty, which ship, at the request 
of the said Canada Company, is not only to bring away the 
French settled in Hudson's Bay, but likewise their effects, 
pursuant to the aforesaid treaty, they paying freight for the 
same, which ship may be expected the latter end of Septem- 
ber, or beginning of October next. 

They further represent to your Lordships, that, according to 
a memorial formerly delivered, this honourable board, relating 
to the limits or boundaries to be settled by commissaries 'twixt 
the English and French in those parts, they humbly prayed,, 
that for avoiding all disputes and differences that may in time 
arise between the Company and the French settled in Canada,, 
that no wood-runners, either French or Indians, or any other 
person whatsoever be permitted to travel, or seek for trade 
beyond the limits thereafter mentioned. 



316 APPENDIX. 

That the said limits begin from the Island called Griming- 
ton Island, or Cape Perdrix, in the latitude of 58J north, may- 
be the boundary between the English and the French, on the 
coast of Labrador towards Kupert's Land, on the coast main, 
and Nova Britannia on the French side. 

That no French ship, barque, boat or vessel, whatsoever, 
shall pass to the north-westward of Cape Perdrix, or Griming- 
ton's Island, towards or into the Streights or Bay of Hudson, on 
any pretence whatsoever. 

That a line supposed to pass to the south-westward from 
the said Island of Grimington, or Cape Perdrix, to the great 
lake Miscosinke, at Mistoveny, dividing the same into two 
parts, (as in the map now delivered), and from the said lake, 
a line to run south-westward into 49 degrees north latitude, 
as by the red line may more particularly appear, and that that 
latitude be the limit, that the French do not come to the north 
of it, nor the English to the south of it. 

That the French nor any others employed by them shall 
come to the north or north-westward of the said lake, or sup- 
posed line by land or water, on or through any rivers, lakes or 
countries, to trade, or erect any forts or settlements whatsoever; 
and the English, on the contrary, not to pass the said supposed 
line, either to the southward or eastward. 

The said Company having already delivered to your Lord- 
ships an abstract of the damages sustained by the French in 
times of peace, amounting to £100,543 13s. 9d., according to the 
direction of the 11th article of the aforesaid treaty, which they 
humbly entreat your Lordships to take care of, to the relief of 
the great hardships they have so long laboured under. 

By order of the Governor and Company of Adventurers of 

England, trading into Hudson Bay. 

Wm. Potter, 

Secretary : 
Hudson's Bay House, \th August, 1714. 



APPENDIX. 317 

August 14:th. 
To the Right Honourable the Lords Commissioners of Trade, SfC 

My Lords : — The Lords Justices desire to have an account 
forthwith laid before them of what has been done since the 
peace, relating to Hudson's Bay, Nova Scotia, and St. Christo- 
pher's. Some things have passed in my office, others I believe 
in the treasury, and a considerable deal I doubt not has been 
done by your Lordships ; wherefore if your Lordships please 
to collect a perfect state of the whole, I will furnish you with 
what you may want from me. 

I am likewise on this occasion to put your Lordships in 
mind of the point referred to by the Treaty of Peace with 
France, to the discussion of commissaries, that their Excel- 
lencies may be acquainted with the orders given to the com- 
missaries of commerce in those matters, and their proceed- 
ings thereupon. 

Your letter of the 30th July, relating to Captain Yan 
Estegle, has been laid before the Lords Justices, and the 
orders their Excellencies have been pleased to give there- 
upon, have been sent to the Treasury and Admiralty. It is 
likewise thought fit that your Lordships, in your station, 
should advertise the governors and other officers in the plan- 
tations, of their duty in the particulars mentioned in your 
letter, both with respect to the trading to the French settle- 
ment, and to the illegal landing of goods from thence. 
I am, 

My Lords, 
Your Lordship's most humble servant, 

BOLINGBROKE 
Whitehall, August 12th, 1714. 



31 8 APPENDIX. 

To the Viscount Bolingbvoke. 

My Lord, — In obedience to Iheir Excellencies the Lords 
Justices' commands, signified to us by your Lordship's letter 
of the 12th inst., requiring to know what has been done since 
the Peace relating to Hudson's Bay, Nova Scotia, and St. 
Christopher's, we take leave to represent : 

That upon your Lordship's letter of the 22nd July, requiring 
us to prepare proper instructions for the British commissaries 
who are appointed to treat with those of France, upon the 
10th, 11th, and 15th Articles of the Treaty of Peace, we 
wrote letters to several persons concerned in the Leeward 
Islands, and several parts of the continent, for what they 
might have to offer to such parts of the said Articles as did 
relate to them respectively, and have received answers from 
some of them. We pray your Lordships will please lay the 
enclosed copies thereof before their Excellencies the Lords 
Justices, as follows : 

Copy of a memorial from the Hudson's Bay Company, de- 
scribing the limits which they desire may be fixed between 
them and the French in those parts, as also an abstract of the 
damages they have sustained by the French in times of peace. 

In relation to St. Christopher's, we further take leave to re- 
present that upon several references from Her. late Majesty 
in Council, from the Lord High Treasurer and from the Secre- 
tary of State, we prepared a representation relating to the set- 
tlement of the French part of that Island, as also a letter to 
the late Lord Treasurer upon the same subject, copies 
whereof are here enclosed, which your Lordships will please 
also lay before their Excellencies the Lords Justices. 

Since which time we have received some other petitions 
from French refugees, also referred to us of the same nature as 
those mentioned in our above said representation, which we 
have not been yet able to consider so as to be able to make a 
report thereon. 

We shall take care by the first opportunity to send direc- 



APPENDIX. 319 

tions to the governors and other officers in the Plantations, in 

relation to the illegal trade between the said Plantations and 

the said French settlements. 

We are, 

My Lord, 

Your most obedient and humble servants, 

Ph. Meadows. 
Arthur Moore. 
Jno. Sharpe. 
Samuel Pytts. 
Thos. Vernon. 
Whitehall, Aug. Uth, 1714. 



APPENDIX P. 
Memorial from M. de Torcy, 1th January, 17 If , for Mr. Prior. 

The 9th (10th) article of the plan imports, that the King 
shall give np to the Queen of G-reat Britain, Hudson's Bay &c, 
in the manner they are now possessed by the King and the 
French. 

The plenipotentiaries of G-reat Britain insist that it shall be 
expressed, that France shall restore not only what has been taken 
from the English, but also all that England has ever possessed in 
that quarter. This new clause differs from the plan, and would 
be a source of perpetual difficulties ; but to avoid them, the 
King has sent to his plenipotentiaries the same map of North 
America, as had been furnished by the plenipotentiaries of 
G-reat Britain. His Majesty has caused to be drawn upon this 
map, a line which describes the boundaries in such a manner 
as he has reason to think they easily may agree [upon] this point 
on both sides. 

If, however, there should be any obstacle which the pleni- 
potentiaries cannot remove, the decision must be referred to 
commissaries to be named for the adjustment of the bound- 
aries of America. The same article says that the King's 



320 APPENDIX. 

subjects shall be at liberty to depart from their lands, in 
places ceded by his Majesty to the Crown of Grreat Britain, to 
carry with them their goods and moveables and to go where- 
ever they please by sea or land. The plenipotentiaries of 
France have also reserved to them the right of disposing of 
their immoveable effects in the space of three years. * * * 

The plenipotentiaries of Grreat Britain agree to one year 
* * * * . Under the name of places ceded they include 
Acadia and the Island of St. Christopher. Under the name of 
places restored, Hudson's Bay and Straits, and the Island of 
Newfoundland. 

Upon Article 10 (11) the plenipotentiaries of France de- 
mand, that the English, obtaining the right to prefer their 
complaints of loss sustained in Hudson's Bay before the com- 
missaries, the King's subjects should have the same right 
with regard to the business at Nevis and Gambia. 

This mutuality, which the plenipotentiaries of Grreat Britain 
have not yet been willing to grant, seems just, the English 
shall have the same liberty to represent their losses at Montser- 
rat, and to solicit a reparation, which shall be granted to them. 



Extract. 

Marquis de Torcy to Lord Bolingbroke, December 29/A, 1712. 

In the name of G-od, sir, order your plenipotentiaries to be less 
excellent grammarians Ours, who also understand the force of 
Latin expressions, are out of patience when they see difficulties, 
which have been long adjusted, started again, and the differ* 
ence between cession and restitution, and the meaning of those 
terms. In truth, sir, such questions ought not to be the amuse- 
ment of honourable men. They are at best excusable only to 
those to whom we may apply amantium irce. Finish these 
disputes, which, if they continue longer, will only profit our 
enemies. 



APPENDIX. 321 

Extrac r. 

Lord Bolingbroke to Marquis de Torcy, 1th January, o. s., 171f. 

There are certain things which derive their consequence 
purely from being disputed ; the difference between the expres- 
sions cedendis and restituendis, between assumpsit and usurpavit 
or arrogaoit is not very essential ; the mind was, however, not 
a little heated in the dispute, and it required some trouble to 
convince certain people that the matter was not worthy of 
attention. 



Memorial concerted with Marquis de Torcy, 19th January, 
1713, and forwarded to Lord Bolingbroke, by the Duke of 
Shrewsbury. 

The inhabitants of Hudson's Bay, subjects of the Queen of 
Great Britain, who have been dispossessed of their lands by 
France, in time of peace, shall be, entirely and immediately 
after the ratification of the treaty, restored to the possession 
of their said lands ; and such proprietors shall also have a just 
and reasonable satisfaction for the losses they have suffered, 
with respect to their goods, moveables and effects ; which losses 
shall be settled by the judgment of commissaries, to be named 
for this purpose, and sworn to do justice to the parties in- 
terested, 

As to the limits of Hudson's Bay, and what the ministry 

here seem to apprehend, at least in virtue of the general 

expression, tout ce que VAngleterre a jamais possede de ce cote /<*, 

(which they assert to be wholly new, and which 1 think is 

really so, since our plenipotentiaries make no mention of it,) 

may give us occasion to encroach at any time upon their 

dominions in Canada, I have answered, that since, according 

to the carte which came from our plenipotentiaries, marked 

with the extent of what was thought our dominion, and 

returned by the French with what they judged the extent of 
w 



322 APPENDIX. 

theirs, there was no very great difference, and that the parties 
who determine that difference, must be guided by the same 
carte. I thought the article would admit no dispute. In case 
it be either determined immediately by the plenipotentiaries 
or referred to commissioners, I take leave to add to your 
Lordship that these limitations are no otherwise advantageous 
or prejudicial to Great Britain than as we are better or worse 
with the native Indians, and that the whole is a matter rather 
of industry than dominion. If there be any real difference 
between restitution and cession, quceritur? Yet since, in either 
case, the right of the inhabitant as to transferring his goods 
and effects, or disposing of his person and family is always 
provided for in treaty, I leave it to your Lordship's better 
judgment if a fixed time in either case, (suppose eighteen 
months or two years) does not put the subject, who is to have 
the benefit which restitution or cession grants him, upon a more 
equal foot, &c. — Prior to Bolingbroke, Sth January, n. &, 1713, 
Hard. St. P. Yol. 2, p. 500. 



APPENDIX Q. 

License of Exclusive Trade to the Hudson's Bay 

Company. 
GEORGE K 

(L. S.) 

G-eorge the Fourth, by the Grace of G-od of the United 
Kingdom of Great Britain and Ireland King, Defender 
of the Faith. 

To all to whom these presents shall come, greeting : 

Whereas an Act passed in the second year of our reign, 
intituled, " An Act for regulating the Fur Trade, and for es- 
stablishing a Criminal and Civil Jurisdiction within certain 
parts of North America ;" wherein it is amongst other things 
enacted, that from and after the passing of the said Act, it 



APPENDIX. 323 

should be lawful for us, our heirs or successors, to make 
Grants or give our Royal License, under the hand and seal of 
one of our Principal Secretaries of State, to any body corpo- 
rate or company, or person or persons, of or for the exclusive 
privilege of trading with the Indians in all such parts of 
North America as should be specified in any such G-rants or 
Licenses respectively, not being part of the lands or territo- 
ries heretofore granted to the Governor and Company of Ad- 
venturers of England, trading to Hudson's Bay, and not being 
part of any of our provinces in North America, or of 
any lands or territories belonging to the United States of 
America, and that all such Grants and Licenses should be 
good, valid, and effectual, for the purpose of securing to all 
such bodies corporate, or companies, or persons, the sole and 
exclusive privilege of trading with the Indians, in all such 
parts of North America (except as thereinafter excepted) as 
should be specified in such Grants or Licenses, any thing 
contained in any Act or Acts of Parliament, or any law to the 
contrary notwithstanding ; and it was in the said Act further 
enacted, that no such Grant or License made or given by us, 
our heirs or successors, of any such exclusive privileges of 
trading with the Indians in such parts of North America as 
aforesaid should be made or given for any longer period than 
21 years, and that no rent should be required or demanded 
for or in respect of any such Grant or License, or any privi- 
leges given thereby, under the provisions of the said Act, for 
the first period of 21 years ; and it was further enacted, that 
from and after the passing of the said Act, the G-overnor and 
Company of Adventurers of England trading to Hudson's 
Bay, and every body corporate and company and person, to 
whom every such Grant or License should be made or given 
as aforesaid, should respectively keep accurate registers of all 
persons in their employ, in any parts of North America, and 
should once in each year return to our Principal Secretaries 
of State accurate duplicates of such registers, and should also 
enter into such security as should be required by us for the 



324 APPENDIX. 

due execution of all criminal processes, and of any civil pro- 
cess in any suit where the matter in dispute shall exceed 
£200, and as well within the territories included in any such 
Grant as within those granted by Charter to the Governor and 
Company of Adventurers of England trading to Hudson's 
Bay, and for the producing and delivering into safe custody 
for the purpose of trial, all persons in their employ, or acting 
under their authority, who should be charged with any crimi- 
nal offence, and also for the due and faithful observance of all 
such rules, regulations and stipulations as should be contained 
in any such Grant or License, either for gradually diminish- 
ing and ultimately preventing the sale or distribution of spiri- 
tuous liquors to the Indians, or for promoting their moral and 
religious improvement ; or for any other object which we 
might deem necessary for the remedy or prevention of any 
other evils which have been hitherto found to exist : And 
whereas it was also in the said Act recited, that by a Conven- 
tion entered into between his late Majesty and the United 
States of America, it was stipulated and agreed, that every 
country on the north-west coast of America to the westward 
of the Stony Mountains should be free and open to the citi- 
zens and subjects of the two powers for the term of ten years 
from the date of the signature of that Convention ; and it 
was therefore enacted, that nothing in the said Act contained 
should be deemed or construed to authorise any body corpo- 
rate, company, or person, to whom his Majesty might, under 
the provisions of the said Act, make or grant, or give a license 
oT exclusive trade with the Indians in such parts of North 
America as aforesaid, to claim or exercise any such exclusive 
trade within the limits specified in the said article, to the pre- 
judice or exclusion of any citizens of the said United States 
of America who might be engaged in the said trade : Pro- 
vided always, that no British subject should trade with the 
Indians within such limits without such Grant or License as 
was by the said Act required. 

And whereas the said Governor and Company of Ad veil- 






APPENDIX. 325 

turers of England trading into Hudson's Bay, and certain 
Associations of persons trading under the name of the 
" North-west Company of Montreal," have respectively ex- 
tended the fur trade over many parts of North America 
which had not been before explored : And whereas the com- 
petition in the said trade has been found for some years past 
to be productive of great inconvenience and loss, not only to 
the said Company and Associations, but to the said trade in 
general, and also of great injury to the native Indians, and of 
other persons our subjects : And whereas the said Governor 
and Company of Adventurers of England trading into Hud- 
son's Bay, and William M'G-illivray, of Montreal, in the Pro- 
vince of Lower Canada, esquire, Simon M'Gillivray, of Suf- 
folk Lane, in the City of London, merchant, and Edward 
Ellice, of Spring Gardens, in the County of Middlesex, 
esquire, have represented to us, that they have entered into 
an agreement, on the 26th day of March last, for putting an 
end to the said competition, and carrying on the said trade 
for 21 years, commencing with the outfit of 1821, and ending 
with the returns of 1841, to be carried on in the name of the 
said Governor and Company exclusively : 

And whereas the said Governor and Company, and Wil- 
liam M'Gillivray, Simon M'Gillivray and Edward Ellice, have 
humbly besought us to make a Grant, and give our Eoyal 
License to them jointly, of and for the exclusive privilege of 
trading with the Indians in North America, under the restric- 
tions and upon the terms and conditions specified in the said 
recited Act : New know ye, That we, being desirous of en- 
couraging the said trade and remedying the evils which have 
arisen from the competition which has heretofore existed 
therein, do grant and give our Eoyal License, under the hand 
and seal of one of our Principal Secretaries of State, to the 
said Governor and Company, and "William M'Gillivray, Simon 
M'Gillivray and Edward Ellice, for the exclusive privilege of 
trading with the Indians in all such parts of North America 
to the northward and the westward of the lands and territo- 



326 APPENDIX. 

ries belonging to the United States of America as shall not 
form part of any of our provinces in North America, or of 
any lands or territories belonging to the said United States of 
America, or to any European government, state or power ; 
and we do by these presents give, grant and secure to the said 
Governor and Company, William M'Gillivray, Simon M'Gil- 
livray and Edward Ellice jointly, the sole and exclusive privi- 
lege, for the full period of 21 years from the date of this our 
Grant, of trading with the Indians in all such parts of North 
America as aforesaid (except as thereinafter excepted) ; and 
we do hereby declare that no rent shall be required or de- 
manded for or in respect of this our G-rant and License, or 
any privileges given thereby, for the said period of 21 years, 
but that the said Governor and Company, and the said Wil- 
liam M'Gillivray, Simon M'Gillivray and Edward Ellice shall, 
during the period of this our Grant and License, keep accu- 
rate registers of all persons in their employ hi any parts of 
North America, and shall once in each year return to our 
Secretary of State accurate duplicates of such registers, and 
shall also enter into and give security to us, our heirs and suc- 
cessors, in the penal sum of ,£5,000 for ensuring, as far as in 
them may lie, the due execution of all criminal processes, and 
of any civil process in any suit where the matter in dispute 
shall exceed <£200, by the officers and persons legally em- 
powered to execute such processes within all the territories 
included in this our Grant, and for the producing and de- 
livering into safe custody, for purposes of trial, any persons 
in their employ, or acting under their authority within the 
said territories, who may be charged with any criminal 
offence. 

And we do also hereby require, that the said Governor and 
Company, and William M'Gillivray, Simon M'Gillivray and 
Edward Ellice shall, as soon as the same can be conveniently 
done, make and submit for our consideration and approval 
such rules and regulations for the management and carrying 
on the said fur trade with the Indians, and the conduct of 



APPENDIX. 327 

the persons employed by them therein, as may appear to us 
to be effectual for gradually diminishing or ultimately pre- 
venting the sale or distribution of spirituous liquors to the 
Indians, aiid for promoting their moral and religious improve- 
ment. 

And we do hereby declare, that nothing in this our G-rant 
contained shall be deemed or construed to authorise the said 
Governor and Company, or William M'Gillivray, Simon 
M'Gillivray and Edward Ellice, or any person in their em- 
ploy, to claim or exercise any trade with the Indians on the 
north-west coast of America to the westward of the Stony 
Mountains, to the prejudice or exclusion of any citizens of 
the United States of America who may be engaged in the 
said trade : Provided always, that no British subjects other 
than and except the said Governor and Company, and the 
said William M'Gillivray, Simon M'Gillivray and Edward 
Ellice, and the persons authorised to carry on exclusive trade 
by them on Grant, shall trade with the Indians within such 
limits during the period of this our Grant. 

Given at our Court at Carlton House the 5th day of Decem- 
ber, 1821, in the second year of our reign. 

By His Majesty's command, 

(l. s.) Bathukst. 



APPENDIX E. 

Memorandum enclosed in Chief Justice Draper's Letter of 
May 6th, to the Secretary of State. 

It is not proposed at present to discuss the validity of the 
Charter of the Hudson's Bay Company. A careful perusal of 
it will suggest many doubts whether it be not altogether 
void. But assuming that it may be sustainable for every or 
for any of the purposes for which it was intended, and for 
ihe moment conceding that the indefinite description of the 



328 APPENDIX. 

territory purporting to be granted, does not vitiate the grant, 
there . is a question as to the limits of that territory in which 
the province of Canada is deeply interested. 

The parts of the Charter bearing on this question are as 
follows : 

1. " All the lands and territories upon the countries, coasts 
and confines of the seas, bays, lakes, rivers, creeks, and 
sounds aforesaid" (stated in a preceding part to be those which 
lie within the entrance of the straits, commonly called Hud- 
son's Straits, in whatsoever latitude, such bays, &c, should 
be), " that are not already actually possessed by or granted to 
any of our subjects, or possessed by the subjects of any other 
Christian prince or State, with the fishing of all sorts of fish, 
whales, sturgeons, and all other royal fishes in the seas, bays, 
inlets and rivers within the premises ; and the fish therein 
taken, together with the royalty of the sea upon the coasts 
within the limits aforesaid, and all mines royal, as well dis- 
covered as not discovered, of gold, silver, gems and precious 
stones, to be found cr discovered within the territories, limits 
and places aforesaid ; and that the said land be from hence- 
forth reckoned and reputed as one of our plantations or colo- 
nies in America, called Rupert's Land : And, further, we do 
by these presents, for us, our heirs and successors, make, 
create and constitute the said Governor and Company for the 
time being, and their successors, the true and absolute lords 
and proprietors of the same territory, limits and places afore- 
said, and of all other the premises hereby granted as afore- 
said, with their and every of their rights, members, jurisdic- 
tions, prerogatives, royalties and appurtenances whatsoever, 
to them the said Governor and Company, and their successors 
for ever, to be holden of us, our heirs and successors, as of 
our manor of East Greenwich, in our county of Kent, in free 
and common soccage."' 

And, 2. " And furthermore, we do grant unto the said Gov- 
ernor and Company and their successors, that they and their 
successors, and their factors, servants and agents, for them 






APPENDIX. 329 

and on their behalf, and not otherwise, shall for ever hereafter 
have, use and enjoy, not only the whole, entire, and only 
trade and traffic, and the whole, entire and only liberty, rise 
and privilege of trading and trafficking to and from the terri- 
tory, limits and places aforesaid, but also the whole and entire 
trade and traffic to and from all havens, bays, creeks, rivers, 
bays and seas into which they shall find entrance or passage, 
by water or land, out of the territories, limits or places afore- 
said, and to and with all the natives and people inhabiting 
within the territories, limits and places aforesaid, and to and 
with all other nations inhabiting any of the coast adjacent 
to the said territories, limits and places which are not granted 
to any of our subjects." 

Prior to this Charter, there was little or nothing done 
within Hudson's Bay in the way of taking any actual posses- 
sion of the territory granted. The bay had been discovered,, 
several ships from time to time had entered it, and probably 
some interchange of commodities with the Indians had taken 
place while the vessels remained within the Straits ; but 
nothing whatever was known of the interior. Charles the 
Second claimed, for it was no more than a claim, all the terri- 
tory which the discovery of the Straits and Bay could confer 
on the British Crown. The French Crown in like manner 
had claimed, by reason of their actual settlement of Canada, 
and of their progressive discoveries and trade, not only all 
the western territory, including that now in dispute, but even 
the Bay of the North, and thence to the Pole ; but neither 
French nor English had, in 1670, actually penetrated, so far 
as appears, within many hundred miles of the Red River. 

The settlements made by the Hudson's Bay Company were 
at first confined to those on the shores of James Bay, and at 
the Churchill and Hayes Rivers. Henley House, which is 
about 150 miles up the Albany River, was not erected before 
the year 1740. The Company afterwards erected Fort Nelson, 
which is laid down on the maps at about 200 or 230 miles 
from the mouth of Churchill River, and the fort at Split Lake, 



330 APPENDIX. 

which is represented as about 140 miles from the mouth of 
the N elson River. It is believed that these two last-named 
forts are of comparatively modern erection, but that, at all 
events, for more than a century after the date of the Charter, 
these, together with the forts on or near the shores of the 
bays, were the only settled posts of the Hudson's Bay Com- 
pany. 

This throws some light upon the view, which the Company 
practically adopted, of the extent of their territories. 

In many written documents they treat Hudson's Straits 
and Bay as the governing and principal matter, in reference 
to or for the purpose of securing which, the grant of territory 
was made to them. 

In a petition addressed by the Hudson's Bay Company to 
Charles the Second, in 1682, they say that His Majesty was 
graciously pleased to incorporate them, and to grant to them 
for ever all the said Bay, and the Straits leading thereunto, 
called Hudson's Straits, with all the lands and territories, 
rivers and islands in and about the said Bay, and the sole 
trade and commerce there ; and, referring to a letter of 
Monsieur de la Barre, the Governor of Canada, threatening to - 
drive them out, they observe, they doubt not but that by the 
King's Royal authority and protection, they will be enabled 
to defend his undoubted right and their own within the Bay, 
" wherein never any nation but the subjects of your Imperial 
Crown has made discoveries or had any commerce." 

In a letter dated January 25, 1696-7, they urge, " whenever 
there be a treaty of peace between the Crowns of England 
and France, that the French may not travel or drive any 
trade beyond the midway betwixt Canada and Albany Fort, 
which we reckon to be within the bounds of our Charter." 

In 1698, in a letter written by their deputy-governor to the 
Lords Commissioners of Trade, they repeat the same desire. 

In a memorial, dated in June, 1699, they represent the 
Charter as constituting them the true and absolute proprie- 
tors of Hudson's Bay, and of all the territories, limits and 



APPENDIX. 331 

places thereto belonging. They further set forth the attacks 
made in 1682 and 1686 by the French from Canada, and their 
applications for redress, and the declaration made by James 
the Second that he, upon the whole matter, did conceive the 
said Company well founded in their demands, and therefore 
did insist upon his own right and the right of his subjects to 
the whole Bay and Straits of Hudson, and to the sole trade 
thereof ; and they pray the then King, William the Third, to 
insist upon the inherent right of the Crown of England and 
the property of his subjects not to be alienated, that so con- 
siderable a trade might not be lost, and the Hudson's Bay 
Company " be left the only mourners" in the peace of 
Ryswick. 

At this time all their forts but one (Albany Fort) had been 
taken by the French ; some of them, indeed, while the two 
Crowns were at peace ; an act of aggression specially referred 
to by His Majesty in the declaration of war in 1689. 

In January, 1700, being called upon by the Lords of Trade 
and Plantations, they offered proposals for limits between 
them and the French in Hudson's Bay, insisting at the same 
time upon their undoubted right " to the whole Bay and 
Streights of Hudson." The proposed limits were, to confine 
the French from trading or building any house, factory or 
fort to the northward of Albany River, situate in about 53° 
of north latitude on the west main coast, or to the northward 
of Rupert's River, on the east main or coast of the Bay, bind- 
ing themselves not to trade or build any house, factory or fort 
to the southward of these two rivers " on any ground belong- 
ing to the Hudson's Bay Company." They urged that these 
limits should be settled ; stating, that if the French refused, 
they must insist upon their prior and undoubted right to the 
whole Bay and Straits of Hudson, which, they observed, the 
French never yet would strictly dispute or suffer to be ex- 
amined into, though the first step of the eighth article of the 
Treaty of Ryswick directs the doing of it. These limits would 
have given the French access to the Bay by the Moose River. 



332 APPENDIX. 

The French Ambassador did, however, in March 1698-9, set 
forth the claims of his sovereign in a long answer to the Eng- 
lish memorial, among other things observing that the differ- 
ent authors who have written about Canada or New France, 
gave it no limits northwards, and that it appeared by all the 
grants or letters of corporation made at several times by the 
Kings of France to the companies settled in New France, and 
particularly in 1628, that all the Bay of the North is compre- 
hended in the limits mentioned by the said grants.* 

He also further suggested, that if the English had had any 
knowledge of the Bay, or any claim thereto, they would not 
have failed to have insisted on it, and expressly to mention it 
in the treaty of 1632 (that of St. G-ermain-en-Laye), when 
they restored to the French, New France. Admitting that 
the French neither then nor for a long time afterwards had 
any forts on the coasts of the Bay, he explains it by saying, 
that being masters of the inland country, the savages, with 
whom they had a continual trade, brought their furs over 
lakes and rivers. 

In April, 1714, the Hudson's Bay Company thank the Queen 
" for the great care your Majesty has taken for them by the 
Treaty of Utrecht, whereby the French are obliged to restore 
the whole Bay and Streights of Hudson ; the undoubted 
right of the Crown of Great Britain." 

In August, 1714, in reference to the same treaty, the Hud- 
son's Bay Company proposed that the limits between the 
English and French on the coast of Labrador, should com- 
mence from the island called G-rimmington's Island or Cape 
Perdrix, in the latitude of 58|° N., which they desire may 
be the boundary between the French and English on the 
coast of Labrador ; and that a line be drawn south-westerly, 



* L'Escarbot describes Canada at the period of the appointment of De la Roche, in 
1598, thus : " Ainsi notre Nouvelle France a pour limites du c6t6 d'ouest les terres 
jusqu'a la Mer Pacifique au dela du Tropique du Cancer, au midi les lies de la Mer 
Atlantique du cote de Cuba et Pile Espagnole, au levant la Mer du Nord qui baigne la 
Nouvelle France ; et au septentrion cette terre qui est dite inconnue vers la Mer GlacSe 
jusqu' a la Pole Arctique." 



APPENDIX. 333 

to pass through the centre of Lake Mistassinhie ; and from 
that lake a line to run south-westward into 49° north latitude ; 
and that such latitude be the limit, that the French do not 
come to the north nor the English to the south of it. 

In another paper of about the same period, they give the 
following account of the motives which induced the forma- 
tion of the Company : " It was, therefore, after the happy 
restoration of King Charles II. that trade and commerce 
began to revive, and in particular that some noblemen and. 
other public-spirited Englishmen, not unmindful of the dis- 
covery and right of the Crown to those parts in America, de- 
signed at their own charge to adventure the establishing of a 
regular and constant trade to Hudson's Bay, and to settle forts 
and factories there, whereby to invite the Indian nations (who 
lived like savages many hundred leagues up in the country) 
down to their factories." 

In August, 1719, the Hudson's Bay Company acknowledges 
the surrender by the French of the Straits and Bay, in such 
manner that they had nothing to object or desire further on 
that head. But they urged the settlement of the limits be- 
tween the English and French territories without delay, since 
the French subsequently to the conclusion of the peace (in 
1715) made a settlement at the head of Albany River, upon 
which the Company's principal factory was settled, whereby 
t ley interrupted the Indian trade from coming to the Com- 
pany's factories. It was therefore proposed and desired, " that 
a boundary or dividend line may be drawn so as to exclude 
the French from coming anywhere to the northward of the 
latitude of 49°, except on the coast of Labrador ; unless this 
be done, the Company's factories at the bottom of Hudson's 
Bay cannot be secure, or their trade preserved." 

In all the foregoing documents it will be observed, that 
whether upon the peace of Ryswick, when English affairs 
looked gloomy, and those of France were in the ascendant, or 
after the Treaty of Utrecht, when the power of France was 
broken, the Hudson's Bay Company sought to have the boun- 



334 APPENDIX. 

dary between the territories they claimed and those forming 
part of Canada, settled by some defined and positive line 
which was to be the result of negotiation, not then pretending 
that there was anything in their Charter which gave them a 
rule by which they could insist that the extent of their terri- 
tories to the southward should be ascertained. 

Even in October, 1750, they entertained the same views, 
while at that time they were pushing their pretensions, both 
to the northward and westward to the utmost limits. They 
state that the limits of the lands and countries lying round 
the Bay, comprised, as they conceived, within their grant, 
were as follow : "All the lands lying on the east side or coast 
of the said Bay, eastward to the Atlantic Ocean and Davis's 
Straits, and the line hereafter mentioned as the east and south- 
eastward boundaries of the said Company's territories. And 
towards the north, all the lands that lie on the north end or 
on the north side, or coast, of the said Bay, and extending 1 
from the Bay northwards to the utmost limits of the lands 
there towards the North Pole ; but where or how these lands 
terminate is at present unknown. And towards the west, all 
the lands that lie on the west side or coast of the said Bay, 
and extending from the Bay westward to the utmost limits of 
those lands, but where or how those lands terminate to the 
westward is also unknown, though probably it will be found 
they terminate on the G-reat South Sea. And towards the 
south, all the lands that lie on the south end ; or south side of 
the coast of the said Bay, the extent of which lands to the 
south to be limited and divided from the places appertaining 
to the French in those parts, by a line," &c, describing the 
line from Cape Perdrix to the 49th parallel, and along that 
parallel westward, as in their proposals of August, 1719, ex- 
cepting that they state the starting point to be in latitude 
59J° N. They add, with regard to this boundary, that, " to 
avoid as much as possible any just grounds for differing with 
the French in agreeing on those boundaries which lie nearest 
their settlements, it is laid down so as to leave the French in 



APPENDIX. 335 

possession of as much or more land than they can make any- 
just pretensions to ; and at the same time leaves your 
memorialists but a very small district of land from the south 
end of the said Bay necessary for a frontier." It is worthy of 
remark, that this line would have given to France the south- 
erly portion of the Lake of the Woods, Rainy River and 
Rainy Lake, which are now claimed as within the Company's 
territories. 

The foregoing extracts are deemed sufficient to establish 
what the Company considered their territorial rights in refe- 
rence to their connexion with and proximity to Hudson's Bay 
itself, where they had planted their factories and desired to 
attract the Indian trade. They certainly show that neither 
after the treaty of Byswick, nor that of Utrecht, when they 
stated the boundaries, they were either willing to submit to, 
or were desirous of obtaining ; nor yet in 1750, when they set 
forth what they thought themselves entitled to claim under 
their Charter, did they ever think of asserting a right to all 
the countries the waters of which flow into Hudson's Bay. 
Their claims to lands lying both northward and westward of 
the Bay are entirely at variance with any such idea. Sir J. 
Pelly, before a Committee of the House of Commons, in 
March, 1837, seems to have adhered to the views expressed in 
3750, when he said, " the power of the Company extends all 
the way from the boundaries of Upper and Lower Canada 
away to the North Pole, as far as the land goes, and from the 
Labrador coast all the way to the Pacific Ocean," though he 
afterwards explains that the Company claimed in fee-simple 
all the lands the waters from which ran into Hudson's Bay. 

It is submitted, that if this latter claim were well founded, 
the further grant in the Charter of exclusive trade beyond the 
limits of the territories granted in fee-simple, would give 
colour to the assertion of the " power" of the Company ex- 
tending to the Pacific ; assuming that the word " power" was 
used to designate the exclusive right of trade, and not the 
ownership of the territory. For if the Charter gives the fee- 



336 APPENDIX. 

simple of the lands to the Eocky Mountains, the Pacific is a 
" Sea," and Frazer's and McKenzie's are " rivers," into which 
u entry or passage by water or land out of the territories" 
actually granted may be found ; though in such case the ap- 
plication for a license for the exclusive trade would, if the 
Charter be in this respect valid, have been unnecessary. 

The French Government, it appears, would not agree t< 
the proposal which would have limited them to the 49th 
parallel. Colonel Bladen, one of the British Commissioners 
under the Treaty of Utrecht, wrote from Paris in 15L9 in re- 
ference thereto, " I already see some difficulty in the execu- 
tion of this affair, there being at least the difference of tw< 
degrees between the best French maps and that which th( 
Company delivered us." No settlement of the boundary 
could be arrived at. 

If the later claim of territorial limits had been advancec 
during this negociation, there can be no doubt it would have 
been resisted even more strenuously than the effort to mak< 
the 49th parallel the boundary was, not merely by contending 
that the territory so claimed formed part of Canada, and had 
been treated as such by the French long before 1670, but also 
that the French king had exercised an act of disposition of 
them, of the same nature as that under which the Hudson's 
Bay Company claim, by making them the subject of a charter 
to a company under the Sieur de Caen's name, and after the 
dissolution of that Company had, in 1627, organized a new 
company, to which he conceded the entire country called 
Canada. And this was before the Treaty of St. Grermain-en- 
Laye, by which the English restored Canada to the French. 
In 1663 this Company surrendered their Charter, and the 
King, by an edict of March in that year, established a council 
for the administration of affairs in the colony, and nominated 
a governor ; and, about 1665, Monsieur Talon, the intendant 
of Canada, despatched parties to penetrate into and explore 
the country to the west and north-west, and in 1671 he re- 
ported from Quebec that the " Sieur du Lusson is returned, 



APPENDIX. 337 

after having advanced as far as 500 leagues from here, and 
planted the cross, and set np the king's arms in presence of 
17 Indian nations assembled on the occasion from all parts, 
all of whom voluntarily submitted themselves to the domin- 
ion of His Majesty, whom alone they regard as their sovereign 
protector." 

The French kept continually advancing forts and trading 
posts in the country, which they claimed to be part of Canada ; 
not merely up the Saguenay River towards James' Bay, but 
towards and into the territory now in question ; in parts and 
places to which the Hudson's Bay Company had not pene- 
trated when Canada was ceded to Grreat Britain in 1763, nor 
for many years afterwards.^ They had posts at Lake St. 
Anne, called by the older geographers Alenimipigon ; at the 
Lake of the "Woods ; Lake "Winnipeg ; and two, it is believed, 
on the Saskatchewan, which are referred to by Sir Alexander 
M'Kenzie in his account of his discoveries. 

Enough, it is hoped, has been stated to show that the limits 
of the Hudson's Bay Company's territory are as open to ques- 
tion now as they have ever been, and that when called upon 
to define them in the last century, they did not advance the 
claim now set up by them ; and that even when they were 
defining the boundary which they desired to obtain under 
the Treaty of Utrecht, at a period most favourable for them, 
they designated one inconsistent with their present preten- 
sions, and which, if it had been accepted by France, would 
have left no trifling portion of the territory as part of the pro- 
vince of Canada. 

So far as has been ascertained, the claim to all the country 
the waters of which ran into Hudson's Bay, was not ad- 
vanced until the time that the Company took the opinions of 



* In the evidence given by the Honourable Wm. M'G-illivray, on one of the North- 
west trials at York (now Toronto), in 1818, he stated that there were no Hudson's Bay 
traders established in the Indian country about Lake Winnipeg or the Red River for 
eight or nine years after he had been used (as a partner in the North-west Company) 
to trade in that country. 
X 



S38 APPENDIX. 

the late Sir Samuel Romilly, Messrs. Cruise, Holroyd, Scarlett 
and Bell. Without presuming in the slightest degree to ques- 
tion the high authority of the eminent men above-named, it 
may be observed that Sir Arthur Pigott, Serjeant Spankie, Sir 
Yicary Gribbs, Mr. Bearcroft, and Mr. (now Lord) Brougham 
took a widely different view of the legal validity of the Char- 
ter, as well as regards the indefinite nature of the territorial 
grant, as in other important particulars. 

Of the very serious bearing of this question on the interests 
of Canada, there can be no doubt. By the Act of 1774, the 
Province of Quebec is to " extend westward to the banks of 
the Mississippi, and northward to the southern boundary of 
the territory granted to the merchants' adventurers of Eng- 
land trading to Hudson's Bay." 

And in the division of the Provinces under the statute of 
1791, the line was declared to run due north from Lake Temis- 
camary " to the boundary line of Hudson's Bay ;" and the 
Upper Province is declared to consist " of or include all that 
part of Canada lying to the westward and southward of the 
said line." 

The union of the Provinces has given to Canada the boun- 
daries which the two separate Provinces of Upper and Lower 
Canada had ; the northern boundary being the territory 
granted to the Hudson's Bay Company. 

It is now becoming of infinite importance to the Province 
of Canada, to know accurately where that boundary is. Plans 
for internal communication connected with schemes for agri- 
cultural settlements, and for opening new fields for commercial 
enterprise, are all, more or less, dependent upon or affected 
by this question, and it is to Her Majesty's Government alone 
that the people of Canada can look for a solution of it. The 
rights of the Hudson's Bay Company, whatever they may be, 
are derived from the Crown ; the Province of Canada has its 
boundaries assigned by the same authority ; and now that it 
appears to be indispensable that those boundaries should be 
settled, and the true limits of Canada ascertained, it is to Her 



APPENDIX. 339 

M. ajesty's Government that the Province appeals to take such 
eps as in its wisdom are deemed fitting or necessary to have 
his important question set at rest. 



Paper delivered in by Mr. Chief Justice Draper, 28th May, 
1857, relative to Canadian Boundaries. 

Boundaries. 

On the 25th January, 1696-7, not long before the Treaty of 
liyswick (which was signed on the 20th September, 1697), the 
Hudson's Bay Company expressed their " desire that when- 
e ver there should be a treaty of peace between the Crowns of 
England and France, that the French may not travel or drive 
any trade beyond the midway betwixt Canada and Albany 
Fort, which we reckon to be within the bounds of our 
charter." 

The 8th Article of the Treaty of Ryswick shows that the 
French, at that time, set up a claim of right to Hudson's Bay, 
though that claim was abandoned at the peace of Utrecht, 
and was never set up afterwards. 

In 1687, James the Second declared to the French Commis- 
sioners, MM. Barillon and Bonrepos, that having maturely 
considered his own right, and the right of his subjects, to the 
whole Bay and Straits of Hudson, and having been also in- 
formed of the reasons alleged on the part of the French to 
justify their late proceedings in seizing these forts (Fort 
Nelson and Fort Charles), which for many years past have 
been possessed by the English, and in committing several 
other acts of hostility, to the very great damage of the Eng- 
lish Company of Hudson's Bay, His Majesty, upon the whole 
matter, did consider the said Company well founded in their 
demands, and, therefore, did insist upon his own right and 
the right of his subjects to the. whole Bay and Straits of Hud- 
son, and to the sole trade thereof. 



340 APPENDIX. 

" The gran s of the French King signify nothing to another 
prince his right, and they may name what they will in their 
grants, places, known or unknown, but nobody is so weak as 
to think that anything passeth by those grants but what the 
King is rightfully and truly possessed of or entitled to, for 
nemo dat quod non habet is a maxim understood of all ; but 
whereas the French would have no bounds to Canada to the 
northward, nor, indeed, to any parts of their dominions in the 
world if they could." — Extract from the Eeply of the Hud- 
son's Bay Company to the French Answer left with the Eng- 
lish Commissioners, 5th June, 1699, under Treaty of Ryswick. 

In 1687 there were discussions between the English and 
French respecting the right to the Bay and Straits, in which it 
was, among other things, submitted on the part of the Hud- 
son's Bay Company as follows : " It shall not be the fault of 
the Company of Hudson's Bay, if their agents and those of 
the Company of Canada do not keep within their respective 
bounds, the one pretending only to the trade of the Bay and 
Straits above-mentioned, whilst the other keeps to that of 
Canada ; and that the forts, habitations, factories and estab- 
lishments of the English Company be restored, and their 
limits made good, as the first discoverers, possessors and 
traders thither." 

The Company having already waived the establishment of 
a right to Hudson's Bay and Straits " from the mere grant and 
concessions of the King, which, indeed, cannot operate to the 
prejudice of others that have the right of discovery and con- 
tinued possession on their side, it is again averred that His 
Majesty's subjects only are possessed of such a right to the 
coasts, bays, and straits of Hudson." 

" The Hudson's Bay Company having made out His 
Majesty's right and title to all the bay within Hudson s 
Straits, with the rivers, lakes and creeks therein, and the lands 
and territories thereto adjoining, in which is comprehended 
Port Nelson as part of the whole."— 10 July, 1700. The Hud- 
son's Bay Company proposed the following limits between 






APPENDIX. 341 

themselves and the French, in case of an exchange oi places, 
and that they cannot obtain the whole of the Straits and Bay 
which of right belongs to them. 

i. That the French be limited not to trade or build any 
factory, &c, beyond the bounds of 53° N. or Albany River, to 
the northward on the west or main coast, and beyond 
Rupert's River, to the northward on the east main coast. 

2. The English shall be obliged not to trade nor build any 
factory, &c, beyond the aforesaid latitude of 53° or Albany 
River, or beyond Rupert's River, south-east towards Canada, 
on any land which belongs to the Hudson's Bay Company. 

3. As likewise that neither the French nor English shall at 
any time hereafter extend their bounds contrary to the afore- 
said limitations . . . which the French may very reasonably 
comply with, for that they by such limitations will have all 
the country south-eastward betwixt Albany Fort and Canada, 
to themselves, which is not only the best and most fertile 
part, but also a much larger tract of land than can be sup- 
posed to lie to the northward, and the Company deprived of 
that which was always their undoubted right. 

By this document it appears the French were insisting on 
having the limits settled between York and Albany Fort, as 
in the latitude of 53° or thereabouts. 

22 January, 1701-2. — The Lords of Trade and Plantations 
asked the Company to say " whether, in case the French can- 
not be prevailed with to consent to the settlement proposed 
on the 10th July preceding by the Company, they will not 
consent that the limits on the east side of the Bay be the lati- 
tude of 52 J°." This proposal would have given the East Main 
River and Rupert's River to Canada. 

On the 29th January, the Hudson's Bay Company alter 
their proposals, offering the boundary on the east main or 
coast, to be Hudson's River, vulgarly called Canute or Canuse 
River (which I take to be the river now marked on the maps 
as the East Main River) ; but, they add, should the French 
refuse the limits now proposed by the Company, the Com- 



342 , APPENDIX. 

pany think themselves not bound by this or any former con- 
cessions of the like nature, but must (as they have alway s 
done) insist upon their prior and undoubted right to the 
whole Bay and Straits of Hudson, which the French never 
yet would strictly dispute, or suffer to be examined into (as 
knowing the weakness of their claim), though the first step 
in the 8th Article of the Treaty of Ryswick directs the doing 
of it. If either proposal had been accepted, the French 
w T ould have had access to James' Bay. The first propositions 
left them the Moose River ; the second appears to have given 
up Rupert's River. 

In February, 1711-1^, prior to the Treaty of Utrecht, the 
Hudson's Bay Company proposed that the limits between 
them and the French in Canada should begin " at G-rim- 
mington's Island, or Cape Perdrix, in the latitude of 58 J° 
north, which they desire may be the boundary between the 
English and French, on the coast of Labrador ; towards 
Rupert's Land on the East Main, and Nova Brittannica on the 
French River." That a line be drawn from Cape Perdrix to 
the G-reat Lake Mistassing, dividing the same into two parts, 
beyond which line the French were not to pass to the north, 
nor the English to the south. 

In August, 1717, they renewed their application for the set- 
tlement of the limits, adding to their former proposition, that 
from the Lake Mistassing a line should run south-westward 
into 49° north latitude, and that such latitude be the limit, and 
that the French do not come to the north, or the English to. 
the south of this boundary. 

In August, 1719, in a memorial, they say, that " the surren- 
der of the Straits and Bay aforesaid has been made according 
to the tenor of the treaty, at least in such manner that the 
Company acquiesced therein, and have nothing to object or 
desire further on that head." But they even then complained 
that since the conclusion of the peace, viz., in 1715, " the 
French had made a settlement at the head of Albany River, 
upon which very river our principal factory is settled, 



APPENDTX. 343 

whereby they intercept the Indian trade from coming to the 
Company's factories ; and will, in time, utterly ruin the trade, 
if not prevented. It is, therefore, proposed and desired, that 
a boundary or dividend line may be drawn so as to exclude 
the French from coming anywhere to the northward of the 
latitude of 49°, except on the coast of Labrador ; unless this 
is done, the Company's factories at the bottom of Hudson's 
Bay cannot be secure, or their trade preserved." This shows 
that the Company there sought to establish an arbitrary 
boundary, and that the object of it was, to secure the fur trade 
from the French. 

The English Commissioners made the demand to have 
limits established according to the prayer of the Hudson's 
Bay Company, and for the giving up the new fort erected by 
the French ; adding a demand that the French should make 
no establishments on any of the rivers which discharged 
themselves into Hudson's Bay ; and that the entire course of 
the navigation of these rivers should be left free to the Com- 
pany, and to such of the Indians as desired to trade with 
them. 

The precise terms of the instructions to the Commissioners 
hardly seem to have contemplated the latter part of the de- 
mand, for they (the instructions of 3rd September, 1719) 
merely designate the boundaries beyond which the French 
and English respectively are not to cross. They contain this 
passage, however : " But you are to take especial care in 
wording such articles as shall be agreed upon with the Com- 
missioners of His Most Christian Majesty upon this head : 
that the said boundaries be understood to regard the trade of 
the Hudson's Bay Company only." 

Colonel Bladen, on the 7th November, 1719, wrote to the 
Lords of Trade that the English Commissioners would that 
day deliver in the demand, and that he foresaw " some diffi- 
culty in the execution of this afFair, there being at least the 
difference of 2° between the best French maps and that 
which the Company delivered us, as your Lordship will per- 
ceive by the carte I send you herewith." 



344 APPENDIX. 

Colonel Bladen was right. After receiving the English 
demands, the French Commissioners, the Marechal d'Estrees 
and the Abbe' Dubois, never met the English Commissioners 
again, and all the instances of the English Ambassadors failed 
to procure a renewal of the conferences. 

The Company were again called upon on the 25th July r 
1750, to lay before the Lords of Trade an account of the 
limits and boundaries of the territory granted to them. They 
replied, among other things, that the said Straits and Bay 
" are now so well known, that it is apprehended they stand 
in no need of any particular description than by the chart or 
map herewith delivered, and the limits or boundaries of the 
land and countries lying round the same, comprised, as your 
memorialists conceive, in the said grant, are as follows : that 
is to say, all the lands lying on the east side or coast of the 
said Bay, and extending from the Bay eastward to the Atlantic 
Ocean and Davis' Strait, and the line hereafter mentioned as 
the east and south-eastern boundaries of the said Company's 
territories ; and towards the north, all the lands that lie at the 
north end, or on the north side or coast of the said Bay, and 
extending from the Bay northwards to the utmost limits of 
the lands, then towards the North Pole ; but where or how 
these lands terminate is hitherto unknown ; and towards the 
west, all the lands that lie on the west side or coast of the 
said Bay, and extending from the said Bay westward to the 
utmost limits of those lands ; but where or how these lands 
terminate to the westward is also unknown, though probably 
it will be found they terminate on the G-reat South Sea ; and 
towards the south," they propose the line already set out by 
them, before and soon after the Treaty of Utrecht, stating that 
the Commissioners under that treaty were never able to bring 
the settlement of the said limits to a final conclusion ; but 
they urged that the limits of the territories granted to them, 
and of the places appertaining to the French, should be 
settled upon the footing above mentioned. 



APPENDIX. 34£ 

APPENDIX S. 

Memorandum. 

The Commissioner of Crown Lands submits the following 1 
remarks on the North- West Territories of Canada, Hudson 
Bay, the Indian Territories and the Questions of Boundary 
and Jurisdiction connected therewith, to accompany the 
other Documents : 

The question now under special consideration has more 
particular reference to the subject of the renewal of a Lease 
held by the Hudson's Bay Company for the "Indian Territories, 
which are not considered to be within the boundaries of 
Canada, though subject to Canadian jurisdiction. 

But the Hudson's Bay Company's "Map and Statement of 
Rights," under the original Charter, as submitted to the Im- 
perial Government in 1850 by Sir J. H. Pelly, the Chairman o 
the Company, has also however to be considered in connection 
with it. 

It becomes necessary therefore to expose the fallacies of the 
" Statement of Sights and Map " referred to, in order that the 
rights of the Province may not be misunderstood or the pre- 
tensions of the Company taken for granted. 

The rights of the Hudson's Bay Company and the effect of 
their operations upon the interests of Canada, will best be 
considered under the following separate heads, viz. : 

First. — With respect to their operations under the original 
Charter on the territories affected thereby. 

Second. — With respect to their operations within the bound- 
aries of this Province, on what has been termed the Indian 
Territories, now under lease to them. 

Third. — With respect to their operations. 

Fourth. — Arising out of the foregoing, the more important 
question of the Boundaries of the above Territorial Divisions 
and 



346 APPENDIX. 

Fifth. — With respect to jurisdiction as exercised and as 
sanctioned by law. 

Operations of the Company on their own Territories. 

On the first head, as regards their operations under their 
Charter on the territories which, if valid, it would cover, it is 
a matter of very secondary importance to Canada. The terri- 
tories of the Hudson's Bay Company, taken at the largest 
extent which any sound construction of their Charter in con- 
nection with international rights would warrant, if not in 
point of distance so very remote, are nevertheless so situated, 
that it can only be when all the localities to the south and 
west, more available for purposes of agriculture and settlement, 
have been filled to overflowing, that settlers may be gradually 
forced into that vicinity from the superabundant population of 
more favoured countries. 

The most direct interest that Canada could have in the 
matter at the present moment, being responsible for the 
administration of justice there, would be rather of a moral and 
political than of an interested or commercial character. But 
as the necessities of the Company, in whose hands a mono- 
poly of the trade has practically existed since the Treaty of 
Utrecht, together with the powers which they profess to derive 
from their Charter, has induced them to establish a jurisdiction 
which, for the moment, seems to have been successful in 
maintaining tranquillity and order, Canada has had no special 
reason to intervene, though if any complaints had been made 
on this score she would of course have felt called upon to 
exercise the powers vested in her by Imperial Statutes. 

It is not indeed to be denied that the freedom of the trade, 
consisting of furs and fisheries, would be of advantage to this 
country ; but as this involves a question of the validity of the 
Charter, and whether or not, if valid in respect of the territory 
really affected by it, it would also affect the open sea of the 
Bay, and seeing that the question is not now raised of any 



APPENDIX. 347 

further legislation to give effect to the powers it professes to 
confer, the consideration of this point is immaterial at the pre- 
sent moment compared with the more important subjects 
that have to be treated of. 

Operations of the Company on Canadian Territories. 

; The second point to be taken into consideration, and which 
is of a more important nature, is that which affects the opera- 
tions of the Company within the boundaries of Canada, and on 
this head it must be admitted that they have had every facility 
they could possibly enjoy in their own territories, if such 
exist : whether on the coasts of Labrador, Lakes Huron, 
Superior or Winnipeg; whether on the Saguenay, the St. 
Maurice, the Ottawa, the Red River, the Assiniboine or the 
Saskatchewan ; wherever they have operated within the bound- 
aries of Canada, they have had precisely the same scope as 
within their own territories on the shores of Hudson's Bay: 
not indeed but what if opposition had sprung up, the same 
facilities must necessarily have been afforded to any rival 
traders, had they not been effectually protected from such 
rivalry by their unlimited means, their extensive ramifications 
and complete organization, with which no rival traders were 
able to compete, unless indeed to a very limited extent in the 
immediate vicinity of the settlements. 

There are indeed parts of the Province so remote from estab- 
lished settlements, and having so little direct intercourse with 
them, that in former years it might have been to some extent 
a tax upon the country to have established tribunals sufficient 
to enforce the laws over regions inhabited only, with one 
exception, by the servants of the Company and the Indians, 
though it may now be reasonably questioned whether corres- 
ponding benefits would not have accrued from such a course, 
while it must be admitted that the Company have at all events 
reaped a profit, taking together the costs they have been put 
to from the want of legal| tribunals and the monopoly of the 



348 APPENDIX. 

trade which the non-organization of [such tribunals has practi- 
cally been the means of enabling them to enjoy. 

The exception referred to, where a considerable settlement 
exists, besides the employees of the Company and the Indians, 
is the Eed River Country. 

But the time has passed when any considerations of expense 
or temporary inconvenience, even if proved to exist, can be 
allowed to stand in the way of opening up those territories, 
when indeed the necessity for expansion compels the Pro- 
vincial Government to create further facilities for it ; and as 
an additional reason why the Government should no longer 
permit the present state of things to continue, it must be 
added that rumours have been gaining ground of late years, 
with a force and clearness that almost compel conviction, that 
the jurisdiction actually exercised in those remote localities 
has been as contrary to the wishes of the people as it has been 
manifestly without the sanction of the law, all which has 
created a necessity for early investigation and action on the 
part of the Canadian Government. 

With this view preparations were made in the Crown Lands 
Department last summer for a preliminary survey from the 
head of Lake Superior westward, preparatory to the opening 
of free grant roads, which have been so successful Jin other 
parts of the country, for the purpose of forming the nucleus 
of a settlement which would gradually penetrate to the valley 
of the Red River and the prairies beyond ; besides which a 
first-class thoroughfare would be necessary to afford easier 
means of communication with the navigable waters flowing to 
the west, &c, to facilitate the administration of justice in the 
distant settlements, and the necessary intercourse generally 
between those parts and the more populous districts of the 
country, and which would at the same time throw open to 
emigration, agriculture and commerce a far larger area, with 
at least an equal average mildness of climate, and susceptible 
of more rapid development (a known characteristic of prairie 
countries), than all other parts of the Province heretofore 
rendered available for settlement. 



APPENDIX. 349 

The question of the renewal of the license of exclusive 
trade on the Indian Territories does not, of course, affect the 
country above referred to, any more than it does the lands, 
whatever they be, for they have never been defined upon 
authority, which the original Charter of the Hudson's Bay 
Company may, upon investigation, be construed to cover. 

Operations of the Company on the Indian Territories. 

The third point is, for the moment, of less importance than 
the last, though within the period of another such lease as the 
Act 1 & 2 G-eo. 4, cap. 66, authorises, as it would be impossible 
to calculate the immense influence it must have upon the 
future of this country, and the British institutions which have 
taken root so deeply and thrive so nobly on its soil. The 
present operations of the Hudson's Bay Company on these 
" Indian Territories " are conducted on the same principle 
precisely as within the boundaries of Canada, the jurisdiction 
they exercise having heretofore had the excuse of necessity, 
if not the sanction of law, and so far as it can be shewn to 
have been exercised to the benefit of those countries, the Com- 
pany might fairly claim indemnity for the consequences, 
should that become necessary, and there is no reason to doubt 
either the generosity or the justice of the Legislature if called 
upon to ratify such a measure. 

It now becomes necessary, under the fourth head, to treat 
the questions of boundary arising out of the three foregoing ; 
and these questions have, heretofore, been so little understood, 
that it will be necessary to enter into the subject at some 
length. 

The difficulty of describing definite boundaries in countries 
which at the time were but very imperfectly or partially 
known, has always been a r matter of serious embarrassment. 
In the present instance, however, the difficulties can only be in 
matters of detail, and it may be safely assumed that they will 
be still further lessened by the fact, that wherever uncertainty 



350 APPENDIX. 

can be supposed to prevail in any point of real importance, it 
can only be between the Province of Canada on the one 
hand, and the " Indian Territories " on the other (not between 
Canada and the Territories of the Hudson's Bay Company, 
unless at a point of comparatively little consequence) ; and it 
would be difficult to conceive that it could be adverse to the 
interests of the Crown or the community, if the principal 
question of boundary were sunk altogether, and the whole of 
the " Indian Territories " incorporated with this Province. 

Boundary of the Company's Territories under Charter 

of 1670. 

In the first place, then, with respect to the Territory affected 
by the Charter of the Hudson's Bay Company, it may be ad- 
mitted that it would not only be difficult but absolutely im- 
possible to define it ; it is therefore fortunate that its limited 
extent renders the question of little importance further than 
that it becomes necessary to consider and rebut the very large 
pretensions of the Company. 

The extent of the territory affected by the Charter is subject 
to two distinct conditions : 

First — It is confined to all such territory as was then the 
property of the donor. 

Second — It is confined to all such unknown territories as 
by the discoveries of the Company, his subjects, might become 
his property. 

These distinctions, though not directly expressed, are never- 
theless conditions resulting from the circums+ances, and neces- 
sary to a proper understanding of the case. 

With respect to the first, viz., the territory which was the 
property of the donor, it is necessarily limited by usage and 
by common sense to what was known or discovered, for the 
unknown and undiscovered could not be his property and 
might never become his property, that being dependent upon 
circumstances then in the futute : it is further limited by spe- 



APPENDIX. 351 

cific condition, expressed in the Charter itself, to such portions 
of what was then known as did not belong to any other 
Christian Prince, which condition, it must be admitted, was an 
acknowledgment on the part of the donor that some part of 
the territory he was describing was not his, and of doubt as 
to what did or did not belong to him. 

With respect to the extent of territory that might have been 
affected by the second condition above stated (that is, as re- 
gards exclusive trade, the grant of soil being less extensive 
and more ambiguous), it has no particular limit, for it embraces 
all countries which could be reached either by " water or land" 
through Hudson's Straits, and to limit or extend it merely to 
the sources of rivers discharging into Hudson's Bay would be 
a construction which the Charter will in no sense admit 
of. But while it extends to all unknown or infidel nations, 
which the Company could reach through Hudson's Straits 
or Bay, it is at the same time inferentially and necessarily 
restricted from extending to any of those unknown parts 
which might be first discovered and possessed by the sub- 
jects of any other Christian Prince or State. This is not 
indeed expressed in the Charter in relation to undiscovered 
territories, but it is emphatically so as regards the then state 
of the rights and possessions of Christian Powers. While the 
King therefore is so careful, at least in the wording of the 
document, not to infringe upon the rights of others already 
acquired, it can scarcely be supposed that he meant to infringe 
upon the rights of others to acquire what then belonged 
to none. The inference is altogether against the supposi- 
tion that King Charles meant by his Charter to deny the 
right of any other civilized nation to make further discoveries 
and appropriate the countries discovered, and, even if he had 
so intended it, he had not the power to alter the law of nations 
in this respect. Besides, the Charter is expressly one of dis- 
covery as well as trade, &c. ; the advantages granted to the 
" adventurers " are incidental and subordinate to that greater 
object, but there could be no discovery on their part wherever 



352 APPENDIX. 

they were preceded by prior discovery and possession on the 
part of the subjects of any other Christian Prince. The right 
of discovery is and was so well established, and wherever 
considered of any importance, has been so jealously watched 
that volumes of diplomatic controversy have been written on 
single cases of dispute, and the King of G-reat Britain could 
not by his Charter annul the recognized law of nations, or 
limit in any degree the right of other States to discover and 
possess countries then unknown. It may even be considered 
extravagant to affirm that he could convey a right of property 
to territories not then, but which might afterwards become his 
or his successors' by the prior discovery and possession of the 
Company themselves, his subjects : were it necessary to dwell 
upon this point, it could easily be shown that most of the ter- 
ritories now claimed under the Charter which were not dis- 
covered at that date, the Company were not afterwards the 
first nor were any other British subjects the first discoverers 
of; that, in fact, except the Coppermine River, the Company 
never discovered anything or [penetrated beyond the Coasts 
and Confines of the Bay (to which perhaps they at that time 
justly considered their rights restricted) for upwards of a 
hundred years after the date of their Charter, and that when 
they did so penetrate, the only discovery they made was that 
the whole country in the interior had been long in the peace- 
ful possession of the subjects of another Christian Prince. 

But the position as regards discovery after the date of the 
Charter, it is unnecessary to dwell upon, particularly as an 
adverse title can be proved prior to the date of the Charter, 
and that too sanctioned by treaty. 

The early discovery and occupation of the country in and 
about Hudson's Bay are, as in many other cases, shrouded in 
a good deal of obscurity. The British claim as the first dis- 
coverers of the whole coast of this part of North America, in 
the persons of John and Sebastian Cabol, about the year 1497; 
but it is contended on the other hand that their discoveries 
did not extend to the north of Newfoundland, which still 



APPENDIX. 353 

retains the name they gave it, and which they supposed to 
form part of the main land. It is said indeed that the Cabots 
penetrated to a very high latitude far to the north of the Straits 
now bearing the name of Hudson ; but it must be remarked 
that there appear to be no authentic records of the two voyages 
of the Gabots, their journals or observations. There appears 
to be only hearsay evidence of what they did, or where they 
went, told afterwards at second-hand to third parties. The 
voyages of the Cabots, therefore, although they are matters of 
history, not admitting of any reasonable doubt, in a general 
way, as to their having reached the coast of America, lose 
much of their force as the bases of specific territorial claims, 
from the want of any record of their proceedings. Did they 
ever land ? If so, where ? "What observations did they make ? 
Did they take formal possession ? &c. 

The French claim through fishermen of Brittany who estab- 
lished fisheries on the coast as early as 1504, and through a 
map published by Jean Deny, of Honfleur, in 1506. The 
map would be valuable if any authentic copy of it be 
extant. There does not appear to be any such record of 
the operations of the Breton fishermen as would fix pre- 
cisely the spot where their trade was carried on, though a 
British geographical work, published in 1671, with a map at- 
tached, fixes it at Hudson's Straits, naming the country after 
them, on the south side of the Straits and within the Bay. 
The next navigator through whom the French claim is main- 
tained is John Yerezzani, who visited the country by order 
of Francis the First of France, in 1523-4. This is the first 
voyage, in behalf of either France or England, of which any 
authentic and circumstantial record exists, as written by the 
navigator himself, who gave the country the name of New 
France. In 1534, Jacques Carrier's discoveries commenced, 
and these are so well known that it is unnecessary to say 
more of them. 

Thus, then, it appears that the Cabots' voyages, unsustained 

by any authentic record, affording no means of basing even a 
Y 



354 APPENDIX. 

probable surmise as to whether so much as a landing was 
effected, formal possession taken, or any act done to constitute 
the assumption of sovereignty or of territorial dominion, com- 
prise the only grounds on which England can base a claim to 
the country north of Newfoundland, prior to the voyage of 
Jacques C artier. Apart, therefore, from the question of " bene- 
ficial interests" (to use the expression of a British diplomatist) 
which were acquired by France, commencing with the dis- 
coveries of Cartier, the preponderance of admissible evidence 
is altogether in favour of French discovery of that part of the 
continent between Newfoundland and Hudson's Bay. But, 
even if the question rested altogether between the unauthenti- 
cated discoveries of the Cabots and the commencement of 
settlement by Cartier, it would not be inappropriate to assume 
the British view of a similar question as maintained in the 
Oregon dispute, in the following words : 

" In the first place, it is a circumstance not to be lost sight of, that it (the discovery 
by Gray) was not for several years followed up by any act which could give it value in 
a national point of view : it loas not in truth made knoxon to the ivorld either by the dis- 
coverer himself or by his Government.'''' 

The next English attempts at discovery commenced in 1553, 
when "Willoughby penetrated to the north of Hudson's Bay, 
which, however, he did not discover or enter. This was nine- 
teen years after Jacques Cartier's first voyage, and was followed 
by various other attempts at finding a north-west passage, all 
apparently directed to the north of Hudson's Straits, until 
1610, the period of Hudson's voyage, in which he perished 
after wintering in the Bay which bears his name ; but by this 
time it must be observed that Canada was colonized by the 
French. 

In 1540, De Roberval was made Viceroy of Canada, the 
description of which as given in his commission included 
Hudson's Bay, though not then of course known by that 
name. 

L'Escarbot gives a full description of Canada at the period 
of De La Roche's appointment in 1598, as follows : 






APPENDIX. 355 

" Ainsi notre Nouvelle France a pour limites du cote d'ouest les terres jusqna la mer 
dite Pacifique au dec a du tropique du cancer ; au midi les iles de la mer Atlantique du 
cot§ de Cuba et PIsle Espagnole ; au levant la mer du riord, qui baigne la Nouvelle 
France ; et au Septentrion cette terre, que est dite inconnue, vers la mer glacee jusqu'au 
Pole Artique." * 

Notwithstanding failures and difficulties, France continued 
the effort to colonize Canada, and in 1598 De La Roche was 
appointed Governor of the whole of Canada as aboye des- 
cribed : in 1603 or 1604 the first exclusive Charter was granted 
for the fur trade of Canada up to the 54th degree of north 
latitude : in 1608 Champlain founded the City of Quebec, and 
in 1613 he accompanied his Indian allies, to the number of 
between two and three thousand, up the Ottawa and by Lake 
Nippissing and the French River, to war with a hostile nation 
at the Sault St. Marie. It must now be observed that the 
great incentive to the colonization of Canada was the enormous 
profits of the fur trade, without which it is scarcely likely that 
such persevering efforts would have been made for that pur- 
pose while so many countries with more genial climates 
remained in a manner unappropriated. 

Tadousac, at the mouth of the Saguenay River, was the 
most important Post established by the French on the St. 
Lawrence ; it was the entrepot of the fur trade before Quebec 
was founded, and continued to be so afterwards. This will 
not be deemed extraordinary when it is considered that the 
Saguenay River afforded the best means of access into the 
interior, and was the best inland route, in fact is the best canoe 
route yet, to the great Bay bearing the name of Hudson. 
There is indeed no authentic record of any of the French 
having made an overland journey to the Bay at so early a 
period, but when it is considered at what an early date the 
Coureurs des Bois traversed the whole country in search of 

* Therefore, New France has for boundaries on the west the Pacific Ocean within the 
Tropic of Cancer : on the south the Islands of the Atlantic towards Cuba and the 
Spanish Island or Hispanolia ; on the east the Northern sea which washes its shores, 
embracing on the north the lands called unknown, towards the frozen sea, up to the 
Arctic Pole. 



356 APPENDIX. 

peltries, how readily they amalgamated with the Indians, 
who in that locality were in friendly alliance with them, and 
when it is also considered what extraordinary journeys the 
Indians undertook, as instanced by the war carried into the 
enemy's country at the Sault St. Marie, already referred to, 
the presumption is that the fur traders of Tadousac not only 
enjoyed the trade of the great bay, but must also have pene- 
trated very far in that direction, if not to the Bay itself, a 
journey at the most of less distance and not greater difficulty 
than that which Champlain successfully accomplished with an 
army, while it had the strong incentive of profit to stimulate 
it. It is not necessary, however, to prove that every corner 
of the country known to the world as New France or Canada 
had been first visited by the actual possessors of the region so 
known. 

However strong the probabilities, therefore, of the Coureurs 
desBois having been in communication with the great northern 
Bay before the visit of Hudson in 1610, or of Button, who 
succeeded him in 1612, it is not necessary to base any argu- 
ment thereon ; nor is it necessary to dwell on the reputed 
voyage of Jean Alphonse, of Saintonge, in 1545, which, although 
quoted by French historians, does not appear to be sufficiently 
authenticated. For, granting that the rights accruing from 
discovery resulted from the voyages of Hudson and Button, 
these discoveries were practically abandoned, in fact were 
never dreamt of being followed up by way of occupation, the 
finding of a north-west passage being their sole object ; but 
waiving even this point, it will be found that the rights of 
France were made good by international treaty long before 
the Charter of Charles the Second was granted. 

It will be seen from L'Escarbot's description, and those con- 
tained in the commissions of the Governors already referred 
to, that France claimed the whole country extending to the 
north of Hudson's Bay, her title resting in the first instance 
upon the discoveries already mentioned, of which those of 
Verezzani, Cartier and Champlain are of unquestioned authen- 



APPENDIX. 357 

ticity, to which they had added, when L'Escarbot wrote in 
1611, the title resulting from actual possession in the shape of 
permanent settlement. England, on the other hand, claiming 
under Cabot's discovery, denied the right of France generally 
to the whole and practically to the more southerly parts where 
she endeavoured to plant settlements of her own, in which she 
was successful at a period somewhat later than the French. 
The fact is, each was trying to grasp more than she could 
take actual possession of; and if mere discovery of parts of a 
continent without actual possession or settlement were made 
the basis of permanent rights, neither of the contending 
parties would perhaps have had any right at all. Gradually 
the state of the actual possessions of the two Powers settled 
down into a sort of intelligible shape, though without any 
very distinct boundaries, the most northerly of the English 
possessions being known as New England, and all the country 
to the north thereof being known as new France or Canada, 
where the French only were in possession, there being no 
possession or settlement of any kind to the north of them. 
Still, had England colonized Hudson's Bay at that period and 
been successful in keeping actual possession of it, she would 
just have had the same right to do so that she had to colonize 
New England. That England persevered with extraordinary 
energy in trying to find a north-west passage there can be no 
doubt, nor does it appear that France, though publicly claim- 
ing the country, made any objection, but neither country made 
the most distant attempt at settlement or occupation of those 
remote and inhospitable regions at that period. 

In 1615 another expedition was made into Hudson's Bay, in 
search of a north-west passage, by Baffin and Bylot. In 1627, 
the Quebec Fur Company was formed under the auspices of 
Cardinal Richelieu, and an exclusive Charter granted to them 
for the whole of New France or Canada, described as extend- 
ing to the Arctic Circle. In 1629, Quebec was taken by the 
British, as were also most of the other principal towns founded 
by theFrenchin Acadiaand Nurembegia (now Nova Scotia and 



358 APPENDIX. 

New Brunswick), which were then Provinces of New France, 
the two nations being then at war. In 1631, Fox and James, 
on two different expeditions, prosecuted a further search for a 
north-west passage in Hudson's Bay, and from the latter of 
these navigators the southerly portion of the Bay takes its 
name. 

At this period the authenticated voyages of the English into 
Hudson's Bay were Hudson in 1610, Button hi 1612, Bylot 
and Baffin in 1615, and Fox and James in 1631 ; the numerous 
other expeditions having been all apparently directed to the 
north of Hudson's Straits. At the same time the extent of 
New France or Canada, as claimed by the French, was pub- 
licly known throughout the civilized nations of Europe. It is 
not necessary to say that that claim was admitted by Great 
Britain ; it is sufficient that it was known. British authorities 
even 'of a later period, it must be observed, have contended 
that the French were intruders in America altogether, in 
violation of the title accrued through the discoveries of the 
Cabots, and had no right whatever to any part of it until ac- 
quired by treaty. It therefore becomes immaterial whether the 
claims of the French were disputed or not, so far as they were 
afterwards confirmed or a title created by Treaty. 

In 1632, peace was concluded, and by the Treaty of St. Grer- 
main-en-Laye, Canada or New France was relinquished to the 
French without any particular designation of its limits, and 
the British forces w T ere to be withdrawn from the places they 
had taken, which being the most important, including the 
seat of government, might almost be said to have amounted to 
the conquest of the whole country. 

Admitting, then, that but a disputed title of discovery had 
previously existed on either part — nay, admitting more, that 
the right vested by prior discovery was in England, this Treaty 
sets the matter at rest as regards all that was at that time 
called by the name of New France or Canada. There is 
indeed no getting behind this treaty, of which the Charter 
afterwards granted by Charles the Second was in fact, but for 



APPENDIX. 359 

the saving clause it contains, a violation, and Canada might 
well be content to rest her case here as against a Charter 
which, referring to a country previously guaranteed by the 
treaty to a foreign power, is expressly conditioned (as a Charter 
of discovery) not to interfere with what belonged to that other 
power. If, as is asserted by some English writers, France 
had no rights in America but such as she acquired by Treaty, 
what, it may be asked, were the limits of the territory she 
acquired by the Treaty of St. G-ermain-en-Laye, if not all 
that she claimed under the name of New France ? It must 
be observed too that Cham plain, the Viceroy of Canada, was 
made prisoner when Quebec was taken in 1629, and carried to 
England, where he remained for some time, and that the very 
year in which the Treaty was entered into, he published a 
work, containing a map of New France, by which Hudson's 
Bay was included in the country so called. Can it then for 
a moment be supposed, with Champlain, the Yiceroy of New 
France, a prisoner in their hands, and their flag floating in 
triumph from the battlements of its capital, that the British 
Government and the Diplomatists who negociated the Treaty 
were ignorant of the meaning attached to the terms " Canada" 
or "New France," or could attach any other meaning to those 
terms than that which Champlain's published maps of a pre- 
vious date indicated, and with which the descriptions of other 
French writers whose works were known throughout Europe 
coincided ? Can it be supposed that in the negociations pre- 
ceding the Treaty, Champlain's views of the extent or bound- 
aries of his Yiceroyalty were wholly unknown, or that the 
British Diplomatists meant something else by the appellation 
than what was known to be understood by France ? If, in- 
deed, something less than the known extent of the country 
called New France had been agreed upon, some explanation 
would undoubtedly have been contained in the Treaty, or, if 
there had been any misunderstanding on the subject, the map 
which issued the same year, in Champlain's work of 1632, 
would at once have been made a cause of remonstrance, for, 



360 APPENDIX. 

coming from the Chief Officer of the Colony, who was re- 
appointed to or continued in his office after the Peace, and 
published in Paris under the auspices of the King, it could 
not be otherwise looked upon than as an official declaration 
of the* sense in which France regarded the Treaty. 

Even, then, if the rights of France were wholly dependent 
upon international Treaties, her right became as good by the 
Treaty of St. G-ermain-en-Laye to the shores of Hudson's Bay 
as to the shores of the St. Lawrence. If she had rights before, 
the Treaty confirmed them ; and if she had no rights before r 
the Treaty created them ; and in either case, the effect was 
as great in the one locality as the other. Every further step, 
however, in the history of the country will only tend to show 
that even if there had been no such treaty as that of St. G-er- 
main-en-Laye, the Charter could not be sustained in opposi- 
tion to the rights of France. 

The provisions of the Treaty of 1632 seem to have been 
respected for a period of 36 years, when in 1668 the next 
English expedition entered the Bay, which was the first trad- 
ing voyage ever made by British subjects to the Bay, and which 
resulted in the formation of the Hudson's Bay Company and 
the grant of the Charter two years after. In saying that this 
was the first purely commercial enterprise of the British in 
Hudson's Bay, it is not meant to be implied that no trade was 
had with the Indians by those engaged in the former expedi- 
tions, but that such enterprises were undertaken with the 
definite object of reaching the Pacific, and without the least 
idea of any practical occupation of, or trade with the country. 
The British having ceased any attempt upon Hudson's Bay 
from the time of Fox and James' voyages and the Treaty of St. 
Germain-en-Laye for a period of 36 years, it now remains to 
be seen what the character of this their next attempt was, 
and what had been the circumstances of the country in the 
interim. 

That the name of Canada or New France continued to 
attach to the whole country during that period is indisputable ; 



APPENDIX. 361 

the French published maps of these times leave no doubt upon 
the subject; and when we find the French not only designating 
the country by these names in their maps published by royal 
authority, but also entering upon the practical occupation of 
the since disputed parts of the country so designated, the 
carrying on of the trade with it both by sea and land, and the 
establishing of missions, all within the period intervening 
between the Treaty of St. Germain-en-Laye and the granting 
of the Charter, or the voyage which preceded the Charter, 
and all without interference on the part of Great Britain, we 
must conclude that the rights of the French were incontestable, 
and that if ever an adverse claim had been preferred it was 
considered to have been abrogated by the Treaty. 

In 1656 the first exclusively commercial sea voyage was 
made into Hudson's Bay by Jean Bourdon, who found the 
trade in furs so profitable that others immediately followed- 
The first missionary establishment was made in 1663 by La 
Couture, who went overland by direction of D'Avangour, 
Governor of Canada, who had been twice solicited by depu- 
tations of Indians from the Bay to send them missionaries; and 
now the French being fully established in the trade and in 
the occupation of the country both by sea and land, of the 
coast and of the interior, the English "Adventurers" first 
appear upon the scene, in a business way, under the counten- 
ance of two Canadians, De Grozelier and Radisson, who having 
been already engaged in the trade of the Bay, and having failed 
in procuring certain privileges they desired from their own 
Government, went to England and induced some Englishmen 
to join them in a trading voyage in 1668, which was so suc- 
cessful that, as already stated, it resulted in the formation of a 
Company, and the grant in 1670 of one of those extraordinary 
Charters which were so much in vogue in those days that the 
whole of the Continent of America, north of the Grulf of Mexico, 
known and unknown, may be said to have been covered by 
them, and some of it doubly so if the vague and ambiguous 
descriptions, of which this was the most vague, could be said 
to mean anything. 



362 APPENDIX. 

This was the origin of the Hudson's Bay Company, and they 
immediately commenced to build forts and establish them- 
selves in the trade, but no sooner was this known in France 
than orders were given to expel them. Accordingly a desul- 
tory warfare was kept up for a number of years between the 
Canadian traders and the Company, in which the latter were 
nearly expelled, but again recovered themselves and strength- 
ened their position when it became necessary to take more 
effective means for their expulsion. Troops were accordingly 
despatched from Quebec overland for that purpose under the 
Chevalier De Troyes, who commenced his work very effectu- 
ally by taking the principal Forts of the Company. It must 
be observed, that this was in 1686, in time of peace between 
G-reat Britain and France, and yet these proceedings were not 
made a cause of war, which in itself would strongly imply an 
admitted right on the part of France to extirpate the Company 
as trespassers upon her territory. 

War having afterwards broken out, the Forts on Hudson's 
Bay were successively taken and retaken, till the Peace of 
Eyswick, in 1697, put a stop to hostilities, at which time the 
British appear to have been possessed of Fort Albany only, the 
Canadians having possession of all the other establishments 
and the trade of the Bay. 

By the Treaty of Eyswick, G-reat Britain and- France were 
respectively to deliver up to each other generally whatever 
possessions either held before the outbreak of the war, and it 
was specially provided that this should be applicable to the 
places in Hudson's Bay taken by the French during the peace 
which preceded the war, which, though retaken by the British 
during the war, were to be given up to the French. There 
could scarcely be a stronger acknowledgment of the right of 
France to expel the Company as trespassers upon her soil, for 
it is impossible to construe the Treaty in this particular other- 
wise than as a justification of the act. 

Moreover, commissioners were to be appointed in pursu- 
ance of the Treaty, to determine the rights and pretensions 



APPENDIX. 363 

which either nation had to the places in Hudson's Bay. Had 
these commissioners ever met, of which there appears to be 
no record, there might have been a decision that would have 
set the question at rest as to which were "rights" and which 
were " pretensions." The commissioners must, however, have 
been bound by the text of the Treaty wherever it was explicit. 
They might have decided that France had a right to the whole, 
but they would not have decided that Great Britain had a 
right to the whole. They would have been compelled to make 
over to France all the places she took during the peace which 
preceded the war, for in that the Treaty left them no discretion. 
The following are the words of the Treaty: "But the possession 
of those places which were taken by the French, during the 
peace that preceded this present war, and were retaken by 
the English during the war, shall be left to the French by 
virtue of the foregoing article." Thus the Treaty of Byswick 
recognised and confirmed the right of France to certain places 
in Hudson's Bay distinctly and definitely, but recognized no 
right at all on the part of Great Britain ; it merely provided a 
tribunal to try whether she had any or not. 

So strongly has the Treaty of Eyswick been interpreted in 
favour of France in this particular, that some historians merely 
state the fact, that by it she retained all Hudson's Bay, and 
the places of which she was in possession at the beginning of 
the war. 

The commissioners having apparently never met to try the 
question of right, things remained in statu quo, and the most 
reliable accounts show that the Hudson's Bay Company re- 
tained possession of Fort Albany only from that time up to the 
Treaty of Utrecht in 1713. Now, whatever the commissioners 
might have done, had they ever passed judgment on the cause 
the Treaty provided they should try, they could not have 
given Fort Albany to the British, for it was one of the places 
taken by the French during the preceding peace and retaken 
by the British during the war, and therefore adjudged in direct 
terms of the Treaty to belong to France. 



364 APPENDIX. 

Thus then it will be seen, that the only possession held by 
the Hudson's Bay Company during the sixteen years that 
intervened between the Treaty of Eyswick and the Treaty of 
Utrecht was one to which they had no right, and which the 
obligations of the Treaty required should be given up to 
France. 

Here, therefore, for the second time an International Treaty 
interposes a barrier against the pretensions of the Company. 

By the Treaty of Utrecht in 1713, the whole of the Hudson's 
Bay was ceded to Grreat Britain without any distinct definition 
of boundaries, for the determining of which commissioners 
were to be appointed. No official statement of the action of 
such commissioners is at present available for reference, but 
it is stated that no such action threw any additional light 
upon the subject. Indeed no such Commissions ever have 
done much to determine boundaries in unexplored countries, 
as witness for instance the dispute so long pending on what 
was called the North Eastern boundary question between 
Great Britain and the United States, which was finally com- 
promised by the Treaty of "Washington, concluded by Lord 
Ash burton ; and again the difficulties arising out of the same 
ambiguous description, and which so many Commissions en- 
deavoured in vain to settle between the Provinces of Canada 
and New Brunswick. 

There is no denying the fact that the ancient boundaries of 
Canada or New France were circumscribed by the Treaty of 
Utrecht, and it is difficult to determine precisely the new 
boundaries assigned to it. The general interpretation adopted 
by the British geographers, as the country gradually became 
better known from that time up to the final Cession of Canada, 
was that the boundary ran along the high lands separating 
the waters that discharge into the St. Lawrence from those 
that discharge into Hudson's Bay to the sources of the Nipigon 
Biver, andthence along the northerly division of the same range 
of high lands dividing the waters flowing direct to Hudson's 
Bay from those flowing into Lake Winnipeg and crossing the 



APPENDIX. 365 

Nelson, or rather (as it was then known) the Bourbon River, 
about midway between the said Lake and Bay, thence passing 
to the west and north by the sources of Churchill River, &c, 
no westerly boundary being anywhere assigned to Canada. 
It may indeed be held doubtful whether the terms in which 
Hudson's Bay was ceded could possibly be interpreted to 
mean more than the Bay and its immediate environs, but what- 
ever the legitimate interpretation of the Treaty, the actual 
acceptation of it gave to France at least all to the south of the 
dividing high lands above described, for she remained in un- 
disputed possession thereof until the final cession of Canada 
in 1763; while on the other hand the acceptation of it on the 
part of Great Britain, as proved by the same test of occupation, 
confined her at least to the north of the said high lands, if not 
to the very shore of the Bay, beyond which her actual pos- 
session never extended. • 

It must here be observed, however, that the Treaty of Utrecht 
conferred nothing upon the Hudson's Bay Company. It gave 
them nothing that was not theirs at the Treaty of Ryswick, 
and the Treaty of Ryswick gave them nothing that was not 
theirs before. The Charter obtained from King Charles the 
Second may have granted all that was his (if anything) to 
grant in 1670, but it would have required a new Charter to 
have granted what France ceded to Great Britain forty-three 
years afterwards. No doubt the Treaty of Utrecht had this 
important bearing upon the Company, that although it con- 
ferred no territorial rights upon them, the territory it conferred 
on G-reat Britain was then inaccessible to British subjects by 
any other route than through the Bay and Straits of Hudson, 
over which (if anything) the Company's Charter gave exclu- 
sive control, and over which, whether rightfully or wrongfully, 
they have exercised such control. 

Matters continued in this state as regards the territorial 
rights of G-reat Britain and France for 50 years more, when 
Canada was ceded to Great Britain by the Treaty of Paris in 
1763. During this period the Hudson's Bay Company occu- 



366 APPENDIX. 

pied the posts on the coasts of the Bay, and these only, having 
made no attempt to penetrate into the interior or occupy even 
what the British Geographers of the time construed the Treaty 
of Utrecht as conferring, not upon the Company, but upon 
Great Britain ; while on the other hand the French had 
covered that part of New France which still remained to 
them (according to the British authorities) with posts or forts 
from the Lake of the Woods to the lower end of Lake Winni- 
peg, and remained in peaceable possession thereof, and in the 
most active prosecution of the trade, until the whole country 
was given up to the British by the Peace of Paris, in 1763 ; 
by which, however, nothing was conferred upon the Hudson's 
Bay Company any more than there had been by the Treaty of 
Utrecht, the rights acquired by these treaties being simply in 
common with other British subjects. 

For a 'few years, about the time of the transfer of Canada 
from French to British dominion, the trade of the western 
territories languished, from a very natural want of confidence 
on the part of the Canadians by whom it had, up to that time, 
been carried on, and who now owed a new allegiance and 
had to seek a new market for the produce of their industry ; 
but a fresh impulse was soon given to it, first by separate 
individuals, then by small companies, and finally by the great 
North-west Company of Montreal, who not only spread their 
operations over all the territories formerly possessed by the 
French, but explored new countries to the north and west, 
while the Hudson's Bay Company had not yet made a single 
establishment beyond the immediate confines of the sea coast. 

The temporary depression of the fur trade at the period of 
the transfer of Canada to British dominion was of course ad- 
vantageous to the Hudson's Bay Company, for the Indians 
inhabiting those parts of Canada where the French posts were 
established around Lake Winnipeg and its tributaries, would 
naturally seek a market in Hudson's Bay during the compara- 
tive cessation of demand at the establishments in their midst. 
But when confidence was restored and a new impulse was 



APPENDIX. 367 

given to the trade in the north-west of Canada, the supply 
was again cut off from Hudson's Bay, and now the Company 
for the first time entered into competition with the Canadian 
traders in the interior, where their first establishment was 
made in 1774. And why, it may be asked, did not the Hud- 
son's Bay Company oppose the French Canadians in the 
interior a few years earlier, as well as they opposed them (prin- 
cipally the same people) now that they had become British 
subjects ? The answer is very simple. During French 
dominion they could not do it because the country belonged 
to France, but by the cession of the country to G-reat Britain, 
the Company had acquired the same right as any other British 
subjects to trade in it, and they availed themselves of that 
right accordingly. 

From this period an active competition was carried on 
between these companies, but the Canadian North-west Com- 
pany were everywhere in advance of their rivals. They were 
the first to spread themselves beyond the limits of the French, 
over the prairies of the Saskatchewan ; they were the first to 
discover the great river of the north, now bearing the name 
of McKenzie, and pursue its course to its discharge in the 
Frozen Ocean ; they were the first to penetrate the passes of 
the northern Cordilleras and plant their posts upon the shores 
of the Pacific ; and with such indomitable energy did they 
carry on their business, that at the period of Lord Selkirk's 
interference, they had upwards of 300 Canadians, " Voyageurs" 
employed in carrying on their trade to the west of the Eocky 
Mountains. 

It would be a useless task now to enter into a detail of the 
attempt made by the Earl of Selkirk, as a partner of the Hud- 
son's Bay Company, to ruin their opponents. It is only neces- 
sary to refer to it here as the first endeavour made to exercise 
the privileges contended for under the Charter over those 
territories which had not been acquired by G-reat Britain till 
the conquest or cession of Canada. Lord Selkirk having 
become the principal partner and acquired a predominant 



868 APPENDIX. 

influence in the affairs of the Hudson's Bay Company, it was 
determined to assert the assumed privileges of the Company 
to an extent never before attempted, and for this purpose a 
grant of the country on the Red River was made to his lord- 
ship, who commenced in 1811-12 to plant a colony there.* A 
Governor was appointed, the colonists and the servants of the 
Company were armed and drilled, and in 1814 the claims of 
the Company to soil, jurisdiction and exclusive trade were 
openly asserted, and for the first time attempted to be enforced 
by the actual expulsion of the North-west Company, several 
of whose forts were surprised and taken, their people being 
made prisoners, their goods seized, and the channel of their 
trade obstructed by the interception of their supplies. Over- 
awed somewhat for the moment by this bold assumption of 
authority, the Canadian Company appear to have avoided the 
contest, but when forced into it they proved the stronger : the 
G-overnor was killed in leading an attack upon a party of the 
North-west Company who turned and gave battle, and the 
colony was dispersed. This final catastrophe occurred in the 
spring of 1816, while in the meantime Lord Selkirk was orga- 
nizing a more formidable force than had hitherto taken the 
field. Having procured a commission of the peace from the 
G-overnment of Canada, he engaged a large force of the dis- 
banded DeMeuron soldiers, equipped them in -military style, 
procured arms, ammunition, artillery even, and started for the 
interior. 

It must be allowed that it was a somewhat anomalous 
course for the G-overnment of Canada to have pursued to per- 
mit such a force to be organised ; but when it is considered 
that great ignorance prevailed as to the state of those remote 

* " Who have been the aggressors in their different quarrels, I am not able to deter- 
mine ; however, previous to 1811, at which time Lord Selkirk became connected with 
the company trading in Hudson's Bay, and sent settlers from Europe to that country, 
no great differences existed between the servants of that Company and the fur traders 
of Canada. There might be difficulties between different posts, but seldom attended 
with serious cousequences."— Despatch of Lieutenant-Governor Gore to Earl Bathuret, 
9th September, 1816. 



APPENDIX. 369 

localities, that it was known that there had been disturbances 
and bloodshed the previous year, when also Lord Selkirk's 
position is considered, and that he went as a pacificator pro- 
fessedly to maintain peace, it may not be deemed so extra- 
ordinary that so much confidence should have been placed in 
him, for he was even granted a sergeant's guard of regular 
troops. It is not the object here, however, to enter into a 
discussion of the unfortunate occurrences of that period, or 
the particular action of the provincial government, and the cir- 
cumstances are only referred to, to show that Canada actually 
exercised the jurisdiction, that Lord Selkirk's destination was 
the Red River Colony, and that he deemed it necessary to 
fortify himself doubly with commissions as a Canadian magis- 
trate, first for Canadian territory, and second (under 43 Geo. 
3rd) for the "Indian territories" so that those who resisted his 
authority on the ground that they were in Canada, he could 
judge under the one commission, and those who resisted on 
the ground that they were in the Indian territories, he could 
judge under the other, while the judicial and governmental 
attributes claimed for the Company would have served as a 
third basis of operations ; and thus with the actual force at his 
disposal there was a pretty fair prospect of the Hudson's Bay 
Company being made the absolute masters of the north-west 
country. 

At the Sault Ste. Marie, however, Lord Selkirk met intel- 
ligence of the death of Governor Semple and the dispersion 
of his colony ; nevertheless he still proceeded with his force 
as far as Fort William, on Lake Superior, where he arrived 
about the 11th of August, 1816, and soon after arrested the 
partners of the North-West Company, who were there at the 
time, and took possession of the whole establishment, including 
the merchandise and stores of the Company. The course pur- 
sued on this occasion, as appears by documents published at 
the time, shews the chararacter of the pretensions set up at 
that period — pretensions which were then and not till then 
presumed upon. 



370 APPENDIX. 

It wili be observed that Fort William was the principal 
depot of the Canadian merchants, through which all their 
supplies for and peltries from the north-west had to pass. By 
seizing on this point therefore Lord Selkirk had possession of 
the key of their whole trade, and was enabled to permit or 
refuse the transmit of their goods as he saw fit. For whatever 
purpose, therefore, he obtained his two commissions of the 
peace in Canada, the expedition simply resolved itself into a 
continuation of the attempt to destroy the North-west Com- 
pany of Canada, the rivals in trade of the Hudson's Bay 
Company, for, however desirable it might be to arrest and 
bring to trial all parties implicated on either side in the death 
of G-overnor Semple, there could be no excuse for seizing the 
persons of those gentlemen who were known not to ha\e 
been at the time within hundreds of miles of the scene of that 
catastrophe, merely because they were partners in the North- 
west Company, nor, even if there were cause for their arrest, 
did that justify the taking possession of their property without 
the sanction or the form of law.* 

The object of entering upon this brief record is, to point out 
that all this occurred at Fort William, on the shores of Lake 
Superior, within what the Hudson's Bay Company, by their 
map and statement of " rights," now admit to be within the 
boundaries of Canada. And thus it will be seen that, while 
the pretension of extending the privileges of the Charter be- 
yond the " coasts and confines " of the bay to the western ter- 
ritories of Canada, was a mere invention of that period, to 
further their own ends and to destroy the rival company of 
Canada, they were as ready to employ force at Fort "William 
as in the valley of the Red River. 

In further proof that the transactions at Fort William were 
openly done in violation of Canadian law and in defiance of 

* " From 1hese Documents it appears, that the Earl of Selkirk, acting in his own 
cause, aided by an armed force, has not only made the Partners of the North-west 
Company prisoners, but has also seized their Papers and Property."— Lieut. -Gov. Gore 
to Earl Bathuret, 9th Sept., 1816. 



APPENDIX. 371 

Canadian authority, it is only necessary to add that when Lord 
Selkirk's proceedings became known, warrants were issued 
for his apprehension and a party of constables sent to arrest 
him, and that refusing obedience to the laws of this country 
and presuming upon the force for the moment at his command 
in that remote locality (remote then as regards the time it took 
to reach it, though at our doors to-day), he caused the con- 
stables to be taken prisoners themselves, and treated the De- 
puty Sheriff of the western district, who afterwards made the 
attempt, in like manner. 

This war between the Companies, though injurious to both, 
failed to exterminate either, and the final result was a com- 
promise by which they entered into partnership ; and thus the 
trade has been carried on since, under the name indeed of 
the Hudson's Bay Company, but expressly in conjunction with 
the North-west Company of Canada, so that Canada can at no 
time be said to have been out of possession of her western ter- 
ritories within the limits occupied by the French at the time 
of the conquest, nor out of possession of the " Indian Terri- 
tories " beyond, which, after the conquest, were first discovered 
by the Canadian traders, and for which the license of exclusive 
trade was granted to the partners of the North-west Company 
of Canada, as such, in conjunction with the Hudson's Bay 
Company. 

It is true that after the amalgamation of the Companies and 
the license of exclusive trade granted in 1821, competition 
became illegal in the " Indian Territories? beyond the boun- 
daries of Canada, as indeed it had always proved impracticable 
on the part of minor traders either within or beyond the remote 
parts of the province, small traders being altogether unable to 
cope with the two great Companies. It is true also that after 
they, the two great Companies, had been for some time united, 
and when by the policy pursued by them the trade had ceased 
to be beneficial to, and had been lost sight of in, Canada, an 
arrangement was effected between the two sections of the 
united Company by which the name of the North-west Com- 



372 APPENDIX. 

pany was dropped entirely, the lease relinquished, and a new 
one obtained in which the name of the Hudson's Bay Company 
alone appeared ; but it must be observed that this new arrange- 
ment was accepted and entered into by the British govern- 
ment by consent of the partners representing the original 
Canadian Company, for although this lease or license only 
affects the Indian Territories beyond the actual boundaries of 
Canada, it can scarcely be supposed that the government 
would have agreed to give it, had Canadian traders still 
remained in the field. The policy of the Companies, when 
joined, has however been so far successful that they have 
managed heretofore to secure themselves against opposition, 
many no doubt being imposed upon by the pretentious but 
erroneous construction put upon their Charter, and the public 
in general kept in the dark respecting a trade which, though 
partly carried on in the very centre of Canada and within 
range of steam navigation, is so managed as to pass by a cir- 
cuitous route, by means of the primitive canoe and over port- 
ages on men's backs, away hundreds of miles into the inte- 
rior and round by Hudson's Bay . 

But the time has come when Canada must assert her rights, not 
only from that necessity for expansion which her growing popu- 
lation and trade require, but also because if she does not now 
begin to provide for the future by opening up her remote ter- 
ritories to colonisation, and securing the loyalty and attach- 
ment of the people by extending to them the rights and privi- 
leges of her laws and institutions, there is a moral certainty 
that a power far more formidable than the Hudson's Bay Com- 
pany must in a very short period acquire the actual possession 
of those countries. 

This brief chronological sketch of the history of the Com- 
pany and of the circumstances connected therewith, must suf- 
ficiently shew that they have acquired no territorial grant 
whatever under either of the two conditions stated to which 
their Charter was subject : first as regards the countries then 
known upon the " coasts and confines " of Hudson's Bay, be- 



APPENDIX. 373 

canse they were already in the possession of the subjects of 
another Christian Prince, and were therefore excluded from 
the grant in terms of the Charter itself; and second, as regards 
discoveries, because when they first penetrated into the 
interior, 104 years after the date of their fs Charter, they 
found the country and a long-established trade in the hands 
of others, — unless indeed as regards some discoveries to the 
north which are of no special importance to Canada, such as 
the Copper Mine River discovered by Hearne under the aus- 
pices of the Company. 

Under the first head the most sanguine advocate of the Com- 
pany, upon a full investigation of all the circumstances, 
could only urge on their behalf a claim to certain points, or 
stations, on the sea coasts of the bay, and even to these a doubt- 
ful and disputed title. 

The high legal authorities that [may bej quoted in favour 
of the claims of the Company cannot be held as of 
weight against the conclusions inevitably resulting from a 
fuller investigation of the subject, inasmuch as they^are merely 
opinions upon the cases submitted. The latest opinion given 
upon the subject is that of Sir John Jervis and Sir John Eo- 
milly in their letter to Earl G-rey, of January, 1850, in which 
they give it as their opinion, " That the rights claimed by the 
Company do properly belong to them." Before arriving at 
this conclusion, however, these learned gentlemen are care- 
ful to specify precisely what papers they had then under con- 
sideration, and to which alone they refer as the basis of their 
opinion. These papers were simply the " Statement of Rights 
and the Map " submitted by the chairman of the Company, Sir 
J. H. Pelly. 

This opinion, therefore, can only be taken as affirmative of 
the power of the King to grant such rights and privileges as 
the Charter specifies, and that the Charter would cover all 
the territory claimed, but the question of whether that terri- 
tory belonged to the King to grant was not before them. With 
respect to the territory which the wording of the Charter 



374 APPENDIX. 

would cover, it would be difficult to say what it would not 
cover ; and with respect to the validity of the grant of such 
powers, it is to be remarked that very high authorities have 
given a directly opposite opinion ; and it may be asked why , 
if the Charter was valid, did the Company procure an Act of 
Parliament to confirm it in 1690, and why when that Act ex- 
pired, which was limited to seven years, did they again ask 
for an Act to continue it ? It is worthy of notice, too, that the 
seven years' Act was passed during war with France, when it 
appears that Parliament did not scruple to grant or confirm 
a Charter for countries to which Grreat Britain had, at best, 
but a disputed title, based only upon a very partial, and, even 
during peace, a very precarious possession ; nor is it less 
worthy of remark, that, when Parliament refused to re-grant 
or continue the Charter the Treaty of Kyswick had intervened, 
by which the rights of France were recognised, and those of 
Grreat Britain left, at most, in doubt, and when, therefore, any 
such Act would have been a direct violation of an interna- 
tional Treaty. 

Another opinion appears to have been obtained by the 
Hudson's Bay Company at an earlier period, from Eomilly, 
Holroyd, Cruse, Scarlett and Bell, equally upon the case 
drawn and without reference to the real points at issue, merely 
affirming that the grant of the soil contained in the Charter is 
good, and that it will include all the countries the waters of 
which flow into Hudson's Bay. This opinion is therefore, 
like the other, of no weight on questions which were not be- 
fore the learned gentlemen who gave it. 

Opposite opinions were obtained at an earlier period by the 
North-west Company, viz., in 1804, from Sir V. Gribbs and 
Mr. Bearcroft. These opinions, however, although they 
touched the fundamental principles of the Charter, had no 
reference to the interior countries on the Eed River, Lake 
Winnipeg, the Saskatchewan, &c, for the simple reason that 
no opinion w T as asked on a case which only arose six or seven 
years later, when Lord Selkirk came on the field. 



APPENDIX. 375 

The position of the question at this period was that the 
North-west Company, being in possession not only of all the 
country formerly possessed by the Canadian French in that 
direction, but also of the country first discovered by themselves, 
to the north-west of Churchill River, came to the conclusion 
that their trade could be more conveniently carried on with 
these more remote parts through Hudson's Bay than through 
Canada. The question they submitted therefore was solely in 
regard to the validity of the Charter in respect of the naviga- 
tion, trade and fisheries of the bay itself. The North-west Com- 
pany as little dreamt of asking an opinion respecting the lega- 
lity of their trade in the interior as the Hudson's Bay Company 
thought, at that period, of attempting its forcible restraint. In 
the case put it is to be remarked that no reference is made to 
the early possessions of the French on the coasts of the bay, 
and consequent possession of the bay itself in communicating 
therewith, and yet, and even without this, these opinions are 
entirely adverse to the exclusive privileges claimed under the 
Charter. 

After the difficulties occasioned by the more recent assump- 
tion of power in virtue of the Charter to expel the North-west 
Company from the Red River country, under the auspices of 
Lord Selkirk, had become serious, another opinion was ob- 
tained by that Company in 1816, from Sir Arthur Pigott, Ser- 
geant Spankie and Lord Brougham. This opinion must be 
held to be more valuable than those obtained by the Hudson's 
Bay Company, inasmuch as it enters more into the merits of 
the case, and is therefore more explicit as to the real views of 
the learned counsel on the subject submitted to them, whereas 
the opposite opinions are such as the gentlemen who gave 
them would be at liberty to ignore upon a fuller submission 
of the case, without incurring a charge of inconsistency. 

The opinion under consideration is very decided on the 
point that the Red River and Saskatchewan countries are not 
within the limits of the Charter, even upon the merits of the 
description contained in the Charter itself, apart from the 



376 APPENDIX. 

question of prior possession by another State. The question 
of prior occupation of these localities by the French is indeed 
lightly touched upon, though the opinion, as above, is definitely 
given without it ; but the rights of Canada now for the first 
time fully discussed, based on prior discovery, at least of the 
whole of the interior, prior occupation on the shores of the 
bay itself, and international treaties, do not appear to have 
ever been pronounced upon by any of those high legal autho- 
rities who have heretofore been consulted, because no such 
case has ever been submitted ; and yet, based upon history 
and facts it may be taken to supersede all necessity for raising 
any question as to the extent of the royal prerogative in 
giving validity to such a Charter. 

Had the Hudson's Bay Company indeed deemed their posi- 
tion good in law, as against the North-west Company, in res- 
pect of the Red River country, it can scarcely be supposed 
that they would have resorted to force at such a lavish ex- 
pense (and it must be added, involving no small amount of 
bloodshed) when the question could have been so easily de- 
termined by the legal tribunals, at an expense altogether in- 
considerable as compared with the actual losses and costs 
incurred. They have indeed attempted to shew that they had 
not an equal chance with their rivals in the courts of this 
Province ; but not to speak of the injustice of such an insi- 
nuation in itself, the objection is untenable while they had the 
right of appeal, and to suppose that they were deterred from 
taking such a course from any difficulty attending the 
proceeding would be simply absurd, when we find them 
organising an army to defend their claims in those remote loca- 
lities, and thus voluntarily removing the venue from the 
courts of law, by a far more difficult and expensive process, to 
the arbitrament of force, where the interference of law could 
not be so readily invoked to check their proceedings. 

And if any justification of this course could be based on the 
supposed validity of their Charter, and on- the ground that it 
could be construed to cover that locality, why, when they 



APPENDIX. 377 

failed to maintain their position by force, when the North- 
west Company, even after the temporary interruption of their 
trade through the seizure of Fort "William by Lord Selkirk, 
still continued in the ascendant, why did they not then resort 
to a trial at law, which, if it had resulted in their favour, 
would at once have secured a power exactly commensurate 
with the emergency to maintain their rights ? for then, if the 
civil power had proved insufficient the w T hole power of the 
empire would have been available as far as necessary. But 
instead of trying the issue in a Court of Law they finally 
amalgamated with their rivals, affording thereby a clear proof 
that they had no hope of being able to treat them otherwise 
than as possessing equal rights, thus consenting to their 
opponents sharing with them what they had previously con- 
tended to be their private property. 

To conclude the question of the Hudson's Bay Company's 
territories under their Charter, therefore, it is difficult to arrive 
at the result that they have any territorial rights at all, for in 
the first place the country was practically occupied by the 
French before the date of the Charter and consequently ex- 
cluded from it ; and in the second place, because the whole 
country, including Hudson's Bay, was known as New France 
or Canada, as per maps and descriptions publicly known 
throughout Europe previous to that date, and therefore, if not 
so before, became the property of France by the Treaty of 
St. Grermain-en-Laye, in 1632, and as such necessarily could not 
be and expressly was not granted by their Charter ; and in the 
third place, because by the Treaty of Byswick the right of 
France to expel them as trespassers on her soil was manifestly 
admitted. And finally, even assuming that G-reat Britain 
originally had acquired a divided right with France, each to 
the extent of the establishments which their subjects respec- 
tively were the first to form, the Hudson's Bay Company 
would only have a right, under their Charter, to those par- 
ticular posts, or forts, which they were the first to take pos- 
session of in localities previously unoccupied, for the Treaty 



378 APPENDIX. 

of Ryswick conferred nothing upon them (if it even permitted 
them to retain anything, which is doubtful) ; the Treaty of 
Utrecht, although it gave Hudson's Bay to the British, con- 
ferred nothing upon the Company, apart from other British 
subjects ; and the Treaty of Paris (although it gave Canada 
to G-reat Britain) conferred nothing upon them, except rights 
in common with other British subjects ; while until eleven 
years after the last named treaty they never occupied any- 
thing beyond their original establishments on the coast, and 
those (also on the coast) conquered from or ceded by France 
at the Treaty of Utrecht, but which could not, by subse- 
quent conquest, or cession, be made subject to their Charter. 

Boundaries of Canada. 

Having thus disposed of the boundaries of the Hudson's 
Bay Company's Territories —if such can be said to exist — the 
boundaries of Canada next come to be considered, and a divi- 
sion of the subject will naturally suggest itself into two 
heads. First, the original boundaries of Canada as acquired 
under the French ; and second, the boundaries of Canada as 
acquired by Great Britain in 1763. The southerly boundaries, 
when not affecting. the present question, need not of course 
be particularly referred to. 

It will not be necessary to enter at length into the question 
of the original boundaries under the French, as they have 
already been sufficiently indicated. They claimed all to the 
north of the St. Lawrence, and were the first to occupy Hud- 
son's Bay. If the British, besides their visits in search of a 
north-west passage, had seen fit to occupy the country for any 
practical purpose and been the first to do so, they might no 
doubt have claimed it for their own. Had any such actual 
occupation followed the voyages of Hudson and Button, not- 
withstanding the French footing on and claim to the whole 
continent north of the St. Lawrence, it must be admitted that 
a valid title would have been created. But when such occu- 



APPENDIX 379 

pation was only first attempted some fifty or sixty years later, 
in support of a commercial project of two Frenchmen who 
had been already engaged in the trade, and when France was 
in formal and actual possession, it cannot be denied that the 
French title was the preferable one. Of the original territories 
of Canada, Great Britain therefore acquired a part by the 
Treaty of Utrecht, the residue remaining to France for fifty 
years later. On this head there seems to be no dispute, for 
British authorities designate a part of what they claim to have 
been acquired by that treaty as Canada. 

It now remains to be considered what were the boundaries 
of the country finally acquired by the Treaty of 1763, which, 
according to French and other authorities, was much larger 
than according to British authorities ; but it will perhaps be 
most satisfactory for the present to adopt the latter. 

One of the most circumstantial British accounts of the 
westerly possessions of the French is to be found in a geo- 
graphical and historical work published by Thos. Jeflerys in 
1760. After giving the French account of Canada, he pro- 
ceeds to give the English version of its boundaries in the 
following words : 

" Canada, according to the English account, is bounded on the north by the high 
lands which separate it from the country about Hudson's Bay, Labrador or New 
Briton, and the country of the Eskimeaux and the Christeneaux ; on the east by the 
River St. Lawrence ; and on the south by the Outawais River, the country of the Six 
Nations and Louisiana, its limits towards the west extending over countries and nations 
hitherto undiscovered." 

The high lands referred to in the above are distinctly de- 
lineated on the maps published with the work as the northerly 
section of the range which, dividing to the north-west of Lake 
Superior, separates the waters flowing direct to Hudson's Bay 
from those flowing into Lake Winnipeg, crossing the Nelson 
River at Split Lake or Lac des Forts, etc. Describing the 
country from Lake Superior westward the author goes on, at 
page 19, as follows : 

" At the north of Les Trois RiviSres, or the Three Rivers, is a little French Fort 



380 APPENDIX. 

called Camenistagouia ; and twenty -five leagues to the west of the said fort, the land 
begins to slope and the river to run towards the west. 

" At ninety -five leagues from this greatest height lies the second establishment of the 
French that way, called Fort St. Pierre, in the Lake des Pluies. The third is Fort St. 
Charles, eighty leagues further on the Lake des Bois. The fourth is Fort Maurepas, 
a hundred leagues distant from the last, near the head of the Lake of Ouinipigon. 
Fort La Peine, which is the fifth, lies a hundred leagues further on the river of the 
Assiniboels. Another Fort had been built on the Piver Pouge, but was deserted on 
account of its vicinity to the two last. The sixth, Fort Dauphin, stands on the west 
side of Lac des Prairies, or of the Meadows ; and the seventh, which is called Fort 
Bourbon, stands on the shore of the Great Lake Bourbon. The chain ends with Fort 
Poskoyac, at the bottom of a river of that name, which falls into Lake Bourbon. The 
Piver Poskoyac is made by De Lisle and Buache to rise within twenty-five leagues of 
their west sea, which they say communicates with the Pacific ocean. All these Forts 
are under the Governor of Canada." 

The above, it will be observed, is the English account of 
what was still French Canada in 1760, just after the taking of 
Quebec and before the final conquest and cession of the 
country. The River Poskoyac is that which now bears the 
name of the Saskatchewan, upon which Sir Alexander Mc- 
Kenzie states that the French had another Fort higher up 
than Fort Poskoyac.^ 

The same author, Jefferys, in his description of Louisi- 
ana, says : " It is bounded on the N. by Canada ; on the 
E. by the British Colonies of New York, Pennsylvania, Mary- 
land, Yirginia, &c, &c." The map accompanying this descrip- 
tion claims the British Colonies, Virginia,. &c, as coming up 
to the east bank of the Mississippi, and therefore it is Louisiana 
west of the Mississippi that he refers to as bounded by 
Canada on the north, that is to say, from the sources of the 
Mississippi westward. • 

The same year in which this work was published, all 
Canada was surrendered to the British, though not finally 
ceded till three years after. 

* "It may be proper to observe, that the French had two settlements upon the Sas- 
katchiwine, long before, and at the conquest of Canada ; the first at the Pasquia, near 
Carrot Piver, and the other at Nipawi, where they had agricultural instruments and 
wheel carriages, marks of both being found about those establishments, where the soil 
is excellent." — Note to General History of the Fur Trade, p. lxxiii. See McKenzie'i 
Voyages. London, 1801. 



APPENDIX. 381 

In surrendering the country to the British, the Marquis de 
Vaudreuil submitted articles of capitulation which were marked 
" granted," or " refused, etc.," according as they were finally 
agreed to by General Amherst. In guarding the interests of 
the Canadian colonists in every part of the country sur- 
rendered, the localities above described by English authority 
as being under the " Governor of Canada," are designated as 
" the Countries above'' and the 46th article of the capitulation 
is as follows : 

"The Inhabitants and Merchants shall enjoy all the privileges of trade under the 
same favours and conditions granted to the subjects of Her Britannic Majesty as well in 
the Countries above as in the interior of the Colony.— Granted." 

By which these countries were manifestly surrendered along 
with the rest of Canada, and the future rights of the Canadians 
guaranteed thereto by the provision that no British subjects 
should ever enjoy any privileges of trade there in which they 
did not share ; not indeed that this guarantee, although it 
would decidedly have that effect, could have been foreseen as 
a safeguard against the Hudson's Bay Company who had 
never at that period penetrated into the country, it being 
simply intended to prevent any cause whatever from depriv- 
ing the French colonists of the benefits of a trade which had 
always been one of the most important in the country. 

In the negotiations for peace that followed in 1761, which 
were directed on the one part by Mr. Pitt, and by the Duke 
de Choiseul on 'the other, and which ended, for the time, in 
failure, France contended for the boundaries of Louisiana 
extending to Canada, which G-reat Britain opposed. Finally, 
the Treaty of 1763 allowed Louisiana to extend west of the 
Mississippi to its source, and made that river from its source 
downwards the boundary between the British and French 
possessions, the boundary from the source of the Mississippi 
westward being left undetermined, a question which had 
ultimately to be settled with the United States instead of with 
France. 



382 APPENDIX. 

The system adopted and industriously followed up by the two 
rival Companies after their union had indeed so disseminated 
an erroneous appellation, that the country north and north- 
west of the Mississippi had come to be commonly called the 
Hudson's Bay Company's Territories ; but when diplomatists 
and statesmen came to consider the subject, tracing up from 
history and fact their respective claims, as bearing upon the 
Oregon question, they did not stultify themselves by the use 
of such an erroneous term ; accordingly we find Mr. Bu- 
chanan, now President elect of the United States, using the 
following language, in concluding a proposition made by him 
on 1st July, 1846 : 

" The line proposed will carry out the principle of continuity equally for both partiee, 
by extending the limits both of ancient Louisiana and Canada to the Pacific along the 
same parallel of latitude which divide them east of the Pocky Mountains." 

The same line of argument sustains the British plenipoten- 
tiary when, in urging the pretensions of his Government to 
Oregon, he traces the progress of the Canadians westward 
across the Rocky Mountains to the Pacific. 

The next step in the natural progress of events is the des- 
cription of Canada under British sway. The first step after 
the Treaty of Paris was to provide for the government of the 
settled parts of the country, for which purpose the Govern- 
ment of Quebec was organised, comprising however a very 
limited portion of Canada, as per proclamation of 7th October, 
1763, the rest of the country being thereby reserved from 
survey or settlement, for the moment, for the protection of the 
Indians. The description of Canada, however, of that period 
took in the country to the westward of Pennsylvania, by the 
Ohio Eiver, to the Mississippi. And the Imperial Statute of 
1774, commonly called the " Quebec Act," describes the Pro- 
vince as extending " Northward to the Southern Boundary of 
the Territory granted to the Merchants Adventurers of Eng- 
land trading to Hudson's Bay," but does not specify what their 
boundaries are, and it will be seen, by what follows, that the 



APPENDIX. 383 

construction put upon this Act by the British Government, 
nine years later, was adverse to the present pretensions of the 
Company. The Treaty of Independence of the United States 
provided a new southerly boundary for Canada, a part of 
what had formerly gone under that name having been ceded 
to the United States ; and by the commission issued to Lord 
Dorchester — the first after this Treaty — the same words are 
used in describing the boundaries of Canada, as in the Treaty, 
viz. : 

" Through Lake Superior northwards of the Isles Royal and Philipeaux to the Long 
Lake ; thence, through the middle of the said Long Lake and the water communica- 
tion between it and the Lake of the Woods, to the said Lake of the Woods ; thence, 
through the said Lake to the most north-western point thereof, and from thence, in a 
due west course to the River Mississippi and northward to the southern boundary of 
the territories granted to the Merchants Adventurers of England trading to Hudson's 
Bay." 

This description, it will be seen, leaves the boundaries be- 
yond the sources of the Mississippi indeterminate. On the 
supposition that a line due west from the Lake of the Woods 
would intersect the Mississippi, the King was obliged to limit 
the extent of Canada on such line to the Mississippi proper, 
because by the Treaty of Paris, France retained the whole 
country to the west of the Mississippi from its source down- 
wards. Had the King's Commission said from the intersec- 
tion of the due west line with the Mississippi " due north'' it 
might have been argued that it provided a westerly boun- 
dary, but it simply says " northerly!' because although it was 
necessary to limit it to the Mississippi, where Louisiana com- 
menced, there is no need for being specific beyond the sources 
of that river where the westerly boundary of Canada was yet 
unknown. Of the extent of Canada to the north by this des- 
cription, it is enough to say that it was the same as by the 
Act of 1774, and required the boundaries of the territory 
granted to the Hudson's Bay Company to be defined first, and 
if that failed it had no other limit, short of its original extent 
under the French. 
At the " definitive Treaty ofJPeace " with the United States 



384 APPENDIX- 

their territory did not extend at any point to the west of the 
Mississippi, until they acquired Louisiana in 1803. It will be 
remembered that Mr. Pitt objected to the northerly boundary 
of Louisiana coming so far north as the southerly boundary of 
Canada in 1761, that nevertheless it was so settled in 1763 
that the Mississippi should be the boundary to its source. 
This result seems to have been a compromise by which Louis- 
iana was confined almost entirely to the west of the Missis- 
sippi, Great Britain thus gaining her point on the east, which 
came more nearly in contact with her old possessions, and 
giving to France entire scope on the west to the very sources 
of the Mississippi, the boundary from thence westward being 
left undetermined. This point had accordingly to be after- 
wards settled with the United States, who had in the mean- 
time acquired the rights of France. This settlement ultimately 
admitted the 49th parallel of latitude as the northerly boun- 
dary of Louisiana, and as such necessarily the southerly boun- 
dary of Canada from the Lake of the "Woods due west to the 
Rocky Mountains, passing north of the source of the Missis- 
sippi proper, though intersecting some of its tributary streams, 
the only error in which was that the line should not have 
been north of the source of the Mississippi, an error resulting 
from a previous treaty with the United States, at a time when 
it was supposed that the parallel of latitude agreed upon east 
of the Mississippi would intersect that river. 

Were the King's letters patent to Lord Dorchester indeed 
taken literally at the present day in regard to the southerly 
boundary of Canada, the due west line of the description, not 
intersecting the Mississippi, would go on as far as British ter- 
ritory, not otherwise organised, would carry it, which would 
be to the Pacific ; or if limited at all it w<>uld be by the first 
waters of the Mississippi which it did intersect, which would 
be the White Earth River, and this would in fact correspond 
with the extent of Canada previously known to the French, 
taking in all the old forts already mentioned and leaving out 
the " countries and nations hitherto undiscovered,'" that is at 



APPENDIX. 385 

the time of the conquest, though at the period when that des- 
cription was made the North-west Company were carrying 
on an active trade much farther to the west : nor is it clear 
that this would be adverse to the intention of the description, 
for some of the .maps of that period represent the Mississippi 
as west of the "Red River. 

The southerly boundary of the British dominions west of 
Lake Superior being therefore demonstrated as identical with 
the southerly boundary of Canada to some point due west of the 
Lake of the Woods, the only question is as to where that point 
is to be found ; is it the White Earth River, the first waters of 
the Mississippi with which the due west line intersects ? or is 
it the summit of the Rocky Mountains, on the same principle 
that the co-terminous boundary of Louisiana was ultimately so 
construed ? 

The next point to be determined is the northerly extension 
of Canada from its southerly boundary. The official descrip- 
tion, corresponding with the Act of 1774, carries it to the 
boundary of the Hudson's Bay Company's Territories, but the 
same official description ignores the boundaries they claim, 
(thus proving so far the construction then put upon the Act of 
1774,) for it carries the southerly boundary of Canada down 
the watershed of Hudson's Bay from two to three hundred 
miles to the Lake of the Woods, and thence due west, thus 
making the starting point far within what the Hudson's Bay 
Company claim, and thus, from a point within what they claim 
as their territory, it is to extend northerly to their territories. 
If then the " rights " of the Hudson's Bay Company were even 
far less equivocal than they are, their southerly boundary, as 
pretended by themselves, is entirely demolished, and the 
question arises where is the boundary of their territories so des- 
cribed as the northerly limit of Canada ? The question of terri- 
torial rights has already been so fully discussed that it is un- 
necessary to repeat the arguments. The only possible conclu- 
sion is, that Canada is either bounded in that direction by a 
few isolated posts on the shore of Hudson's Bay, or else that 

AA 



386 APPENDIX. 

the Company's territory is — like the intersection of the due 
west line with the Mississippi —a myth, and consequently 
that Canada has no particular limit in that direction. 

The accompanying map illustrates the northerly boundary 
of Canada, according to British authorities, as ceded by the 
French in 1763, there being no westerly boundary then known 
or since provided. This is perhaps all that could in the first 
instance be absolutely claimed as under the Government of 
Canada, were it not that, since the final determination of the 
southerly boundary, the Imperial Government merely des- 
cribed the authority of this Government as extending over 
all the countries theretofore known as Canada, which might 
fairly be taken to cover the territory acquired by the Treaty 
. of Utrecht, as well as that acquired by the Treaty of Paris. 

BOUNDARIES OF THE INDIAN TERRITORIES. 

The boundaries of the Indian Territories need little consi- 
deration or explanation, as they simply include all that belongs 
to Great Britain in North America to the north and west of 
Canada, excepting the Territory (if any) which the Hudson's 
Bay Company may of right claim. It must not be lost sight of, 
however, that the great bulk of this territory has been acquired 
by the Crown of Great Britain through discoveries of its Cana- 
dian subjects, beyond whatever may be determined to be the 
westerly boundary of Canada, across the Rocky Mountains 
to the shores of the Pacific, and by the McKenzie Eiver to the 
Frozen Ocean. The importance of these discoveries in the 
negotiations pending the Treaty of Oregon cannot be for- 
gotten, for it is in virtue of Canadian Discovery and Canadian 
Settlement that the British negotiator was enabled to maintain 
his position in the controversy, and secure a footing for his 
country on the Pacific. And when, it may be asked, did ever 
the Hudson's Bay Company afford such an important advan- 
tage to British interests ? 
Sir Alexander McKenzie's journey in 1793 across the Rocky 



APPENDIX. 387 

Mountains (the first ever performed north of Mexico) is thus 
referred to by the British Plenipotentiary, in negotiating the 
Treaty of Oregon : 

" While Vancouver was prosecuting discovery and exploration by sea, Sir Alexander 
McKenzie, a 'partner in the North-west Company, crossed the Rocky Mountains, dis- 
covered the head waters of the river since called Frazer's River, and following for some 
time the course of that river, effected a passage to the sea, being the first civilized 
man who traversed the continent of America from sea to sea in these latitudes. On 
the return of McKenzie to Canada the North-west Company established trading posts 
in the country to the westward of the Rocky Mountains." 

This was the British title to that part of the country, and 
but for this journey and the establishing of these trading posts, 
by which were . acquired what the same diplomatist says 
" may be called beneficial interests in those regions by com- 
mercial intercourse," the probability is that G-reat Britain 
would now hold no continuous possessions across this con- 
tinent, if she even held any isolated localities on the Pacific 
in virtue of her discoveries by sea. 

Lewis and Clark, Americans, descended the southerly 
branch of the Columbia River, i805, and in 1811, Mr. Thomp- 
son, of the North-west Company,®came down the main branch 
from the north, whose discovery is thus referred to by the 
British Plenipotentiary : 

"In the year 1811, Thompson, the Astronomer of the North-west Company, dis- 
covered the northern head waters of the Columbia, and following its course till joined 
by the rivers previously discovered by Lewis and Clark, he continued his journey to 
the Pacific." 

And again : 

" Thompson, of the North-west Company, was the first civilized person who navigated 
the northern, in reality, the main branch of the Columbia, or traversed any part of the 
country drained by it." 

This is the title by which Great Britain has been enabled 
to retain the main branch of the Columbia to its intersection 
with the 49th parallel of north latitude, and the free navigation 
for her subjects of the whole river from that point to its dis- 
charge in the Pacific Ocean, as secured by the Treaty of Ore- 
gon, 1846. 



388 APPENDIX. 

With respect to McKenzie's discoveries to the north, no 
diplomatic reference thereto can be quoted, inasmuch as thero 
has been no disputed title on the part of any foreign Power 
to give rise to any controversy upon the subject. 

It may fairly be urged therefore, that these " Indian Ter- 
ritories," originally the fruits of Canadian enterprise, persever- 
ance and industry, should no longer be shut out from the Cana- 
dian people, but should in fact be united to Canada as a part 
of the British Dominions, which Canadian subjects have had 
the merit of acquiring and retaining for the British Crown. 

Jurisdiction. 

The question of jurisdiction next comes under consideration, 
and in this, as regards the Hudson's Bay Company, it is ap- 
prehended that the actual exercise of it is widely different 
from what existing laws would sanction. 

The mystery with which this Company have managed to 
shroud their operations in the interior renders it difficult to 
say what they do or what they do not do, but it is generally 
understood that they actually exercise unlimited jurisdiction 
in every respect, civil, criminal and governmental, and that 
not only in what has been considered their own territories, 
but also in the Indian Territories and those parts of Canada not 
immediately contiguous to settlement, all which existing law 
positively forbids them to do, it need not be said in Canada, 
but either in their own territories or in the Indian Territories. 

By the Imperial Statute 43 George 3, chapter 138, the juris- 
diction over the Indian Territories and all " parts of America 
not within the limits of the provinces of Lower or Upper Canada, 
or either of them, or within any civil government of the 
United States of America," is vested in the said provinces. It 
is a curious circumstance that the very words of this Act, 
which seem to have been intended to deny all claim to any 
jurisdiction on the part of the Hudson's Bay Company, should 
have been taken hold of as the means of questioning its refer- 
ence to them. The preamble of the Act, in giving the reason 



APPENDIX. 389 

for the enactment, states that offences not committed within 
the limits of the Canadas or the United States, as above, " are 
therefore not cognisable by any jurisdiction whatever." This 
the Company argued could not mean their territories, because 
jurisdiction did exist there. The Act, they said, could not 
mean all British America not within the limits of the Canadas, 
for the assertion that no jurisdiction existed was not true of 
Nova Scotia or New Brunswick, and therefore might not be 
true of Hudson's Bay. Thus, in fact, it appears that the 
framers of the Act having their minds directed to the north- 
west, where the offences referred to had occurred, forgot to 
exclude the provinces lying on the opposite side of Canada, 
on the Atlantic coast, from its operation ; and this omission, 
when the war was carried on between the two Companies in 
the interior, Lord Selkirk turned to account to throw doubt 
on the applicability of the Act to the Company's Territories. 
But the assumption that this Act does not affect their preten- 
sions is doubly futile ; for, when more closely considered, it 
either brings their Territories within Canadian jurisdiction or 
it ignores them altogether, and in either case it contracts 
the limits they claim. If they make good their assertion 
that it does not affect their territories, then it destroys their 
claim to have their limits extended to the boundaries of 
Canada The territories referred to in the preamble of the 
Act are those not within the limits of either Lower or Up- 
per Canada, the two provinces being treated distinctly as re- 
gards the territories not within their limits. Now, taking 
Lower Canada in the first instance, it is bounded by the 
Ottawa, and a line due north from the head of Lake Temis- 
camingue, and the places outside its limits on which the Act 
would have effect, if not the Company's territories, must cer- 
tainly be something between these limits and their territories. 
But the question is more important as regards the places 
outside of Dpper Canada. If the maps accompanying the 
" Statement of Rights " submitted by Sir J. H. Pelly be correct, 
then the territory affected by the Act is about 1,500 miles 



390 APPENDIX. 

distant in its nearest part from the most remote point in 
Canada. In other words, Canada ends at the source of Pigeon 
River, and the Indian Territories begin at the top of the 
Rocky Mountains, and we are required therefore to assume 
that the Imperial Legislature meant to commit the absurdity 
of giving jurisdiction to the courts of Canada over a territory 
beginning at a distance of some fifteen hundred miles from 
her frontier, while a different British jurisdiction (that of the 
Company) prevailed in the intervening space. But assuming 
for fact the Company's view of the case, that it did not affect 
their territories, we find the very purpose for which the Act 
was passed as expressed in the title to be to provide a juris- 
diction for certain parts of North America adjoining to the 
said provinces " of Lower and Upper Canada. Consequently, 
if the territory affected by the Act only commences at the 
summit of the Rocky Mountains, as represented by the map 
submitted by Sir J. H. Pelly, then as it adjoins this province, 
Canada must extend to the summit of the Rocky Mountains, 
so that on their own shewing the jurisdiction they exercise in 
the intervening space, at Red River for instance, is out of their 
own territories, and therefore not only without the sanction 
of law but in violation of a positive enactment. They must 
thus either ignore their own pretensions to the territory be- 
tween what they call the westerly boundary of Canada, and 
easterly boundary of the " Indian Territories," "or they must 
admit that the Act under consideration (which is still unre- 
pealed) applies to their territories, in which case their jurisdic- 
tion in every part would be in violation of the statute. 

But if there was any doubt on the subject before, it was 
fully removed by the Act 1 and 2 G-eo. 4, Cap. 66, which was 
passed after all the strife and bloodshed in the north-west, 
and which, after reciting the doubt raised respecting the former 
Act being applicable to the Hudson's Bay Company's territories, 
declares at section 5 in the strongest and most comprehensive 
manner, that the said Act and all its clauses shall be con- 
strued to apply to their territories, anything in " any grant 
or Charter to the Company to the contrary notwithstanding." 



APPENDIX. 391 

This Act, 1 and 2 G-eo. 4, Cap. 66, gives jurisdiction as full 
and complete as language can make it oyer all the Indian and 
Hudson's Bay Company's Territories to the Courts of Canada, 
and it provides for the appointment of Justices of the Peace 
by the Crown (both for the Indian Territories and Hudson's 
Bay Company's Territories), to whom the Canadian Courts are 
empowered to issue commissions " to take evidence in any 
Cause or Suit and return the same, or try such issue, and for 
that purpose to hold courts, &c." These courts are most dis- 
tinctly made subordinate to the Courts of Canada, &c, and 
can in fact be created by and exist through them only. 

By the 11th and 12th clauses, however, the Crown is em- 
powered to create Courts of .Record, without the intervention 
of the Canadian Courts (but without limiting the power to 
be exercised through them), for the trial of small causes and 
petty offences, the former being limited to civil cases not 
affecting a larger amount than <£200, and the latter to cases in 
which the offence does not subject the person committing the 
same to capital punishment or transportation. 

By this Act it is repeatedly declared and enacted in the 
most emphatic manner, that its enactments shall have effect 
" notwithstanding anything contained in any Charter granted 
to the Governor and Company of Adventurers of England 
trading to Hudson's Bay." 

It is true the last clause of the Act reserves to the Company 
in the most ample manner all rights and privileges they " are 
by law entitled to claim and exercise under their Charter." 
This it will be observed is what the "Statement of Rights" 
refers to when claiming a " concurrent jurisdiction " with the 
Canadian Courts. Now, when it is observed that the Legis- 
lature has refrained from expressing any opinion as to what 
the rights or privileges of the Company really are, and 
cautiously abstained from recognising any but what they 
already had " by law" it is difficult to suppose that it was the 
intention of the Act to recognise in them those very powers 
which it was making the most ample provision for the exer- 



392 APPENDIX. 

cise of by a totally different authority in strong and repeatedly 
expressed abnegation of their pretensions. 

It is also to be observed that the previous Act, 43 G-eo. 3, 
which denies their jurisdiction is still in force, unrestricted in 
every particular, and not deriving its force from the subse- 
quent statute, which is merely declaratory in that particular 
of its proper construction. 

The question of whether the Company can exercise any 
legal jurisdiction within their own territories, — limited to 
their just extent, — loses its importance however in face of the 
more serious question of its actual exercise both in Canada 
and the Indian Territories, and that even to the extent of life 
and death, while the intention of the Imperial Legislature in 
creating a jurisdiction for these territories, reserved all im- 
portant cases, either civil or criminal, for trial by the regularly 
constituted legal tribunals of an organized community, where 
the Charter of British rights would be held as sacred as the 
interests of a commercial company who assume to be them- 
selves the Judges where (without any reflection upon them 
collectively or individually) cases must, in the very nature of 
things, arise in which they ought to be judged. 

It therefore becomes of very great moment to ascertain the 
truth of certain statements that have been made to the effect 
that their principal officers at the Red River hold their com- 
missions from the Crown, and if so, under what form, for 
what extent of territory, and how described. Such commis- 
sions might no doubt have been issued under the statute 1 
and 2 Geo. 4, for the Hudson's Bay Company's Territories 
and for the Indian Territories, for the trial of small causes and 
offences of a minor nature as already described, without in 
the least infringing upon or limiting the right of Canada to 
intervene ; but if the British Government has expressly in- 
cluded the Red River country in any such commissions, it can 
only have been through a misapprehension of boundaries, 
which is not to be wondered at from the policy pursued since 
the union of the Companies, and the erroneous view of the 



APPENDIX. 393 

case they have so constantly disseminated, and no doubt any 
such powers, if they had been granted, would be withdrawn 
as soon as the case has been brought fully under the consider- 
ation of the Imperial authorities. 

In concluding the question of Jurisdiction, it is necessary 
to observe that the Imperial Statutes herein quoted, which 
vest the jurisdiction in Canada to the shores of the Pacific, 
have been repealed in so far as they relate to Vancouver's 
Island by the Act 12-13 Yic, Cap. 48, which re-invests the 
jurisdiction of Yancouver's Island in the Imperial Govern- 
ment until the establishment of a local Legislature, which 
the Act contemplates. 

At the same time, a charter was granted to the Hudson's 
Bay Company for the colonization of the Island, conveying a 
grant of the soil. 

Neither the Act nor the Charter, however, confers any juris 
diction upon the Company. 

The Company were required by the terms of the grant to 
colonize the Island within five years, failing which the grant 
was to become void. It was also stipulated that the grant 
might be recalled at the time of the expiration of their lease 
for the Indian Territories upon payment to the Company of 
the expenses they might have incurred, the value of their 
establishments, &c. 

GrENERAL EEMARKS. 

Before concluding this Report it is desirable to offer a few 
general remarks upon the subject, which the policy of the 
Company has kept out of view, and which consequently is not 
generally well understood. 

The Hudson's Bay Company claim under three separate 
titles, the first of which is the Charter of Charles II., granted 
in 1670, for ever. The second is the lease originally granted 
in 1821 to them in conjunction with the North-west Company 
of Canada for the Indian Territories. The third is their title 



394 APPENDIX. 

to Vancouver's Island, as explained. Under the first they 
base their claim to government, jurisdiction and right of soil 
over the whole country watered by rivers falling into Hud- 
son's Bay, — at least, such is the theory, although they have 
abandoned it south of the present southerly boundary of Canada 
at Rainy Lake, the Lake of the Woods and along the 49th 
parallel, to the south of which those rivers take their rise. 
Under the second, they claim exclusive trade from the Rocky 
Mountains west to the Pacific, and from the sources of the 
McKenzie River to the Frozen Ocean. There is no dispute 
about their title on this head, but their lease expires in two 
years, and it is a renewal of this lease for a further period of 
21 years which they now seek to obtain. 

It will be seen by the question of boundary already treated, 
that the country about Red River and Lake Winnipeg, etc., 
which they claim under their Charter, absolutely belongs to 
Canada ; and it will be observed that the abstract right, not 
the value of the territory, has been dwelt upon, but unfor- 
tunately the latter has been as little generally understood as 
the former, the result of the means the Company have taken 
to conceal it, for seldom if ever has the wisdom and foresight 
of man devised a policy better calculated to the end for which 
it was intended than that adopted since the union of the Com- 
panies in 1821. 

Before that union the Canadian Fur Trade gave employment 
to some thousands of men as mere carriers, or " Voyageurs " 
as they were termed. 

In endeavouring to depreciate the national services ren- 
dered by the North-west Company during the war of 1812, at 
the capture of Michilimacinac, &c, Lord Selkirk alludes to 
this body of men as forming the " Voy agents Corps' 1 but 
denies credit to the Company for their important services, 
which he admits "in a great measure secured Canada," be- 
cause they were not constantly employed by the Company, 
and effected this service at a season of the year when the 
Company did not require them. Assuming this to be the fact, 



APPENDIX. 39'5 

however, had there been then, as now, no such Company and 
no such trade, there would have been no such body of men 
ready for action in the hour of danger. 

Had the circumstances of the trade continued the same to 
the present day, settlement must have followed the route of 
such a line of traffic, and the continual intercourse between 
this country and the fertile plains of the " far West " would 
have placed us as far in advance of our American neighbours 
in the colonization of those countries, as we are now behind 
them. 

But the policy of the united Companies has been so admir- 
ably carried out in all its details, that an erroneous impression 
respecting the country and everything connected with it had 
gradually got possession of the public mind, and it is wonderful 
with what tact such impressions may sometimes be conveyed 
without any statement being made contrary to truth. The 
very appellation of " Hudson's Bay Territory" as applied for 
instance to the Red River country, carries a false impression 
with it, for the waters of the Mississippi and the Red River, the 
Assiniboine and the Missouri, interlace with each other there,. 
and therefore the designation of " Gulf of Mexico Territory " 
would just be as correct. But what a different impression it 
would convey as regards climate. Again, almost every men- 
tion of the available parts of the Western Territories, which 
are well known to possess a soil and climate adapted in the 
highest degree for successful settlement, is interwoven with 
some reference to ice in some shape or other, w 7 hich no doubt 
the Company truly encounter in carrying the trade some 
eight hundred miles due north through Hudson's Bay. 

An admirable specimen of this kind of policy, by which 
erroneous impressions may be conveyed, is to be found in 
Sir J. H, Pelly's letter to Lord Glenelg, of 10th February, 
1837 :— 

" For many years prior to the conquest of Canada, French subjects had penetrated by 
the St. Lawrence to the frontiers of Rupert s Land ; but no competition had occurred 
between the traders of the two countries within the territories of the Hudson's Bay Com- 
pany previous to the cession of Canada to Great Britain. 



396 APPENDIX. 

" Subsequent to that period, the greater capital and activity of British subjects led 
to a competition, first on the frontier parts, then in the interior, and at last to the forma- 
tion of a Company, combining all the individuals at that time engaged in the trade, to 
countries bordering on and west of Lake Superior, under the firm of the North-west 
Company of Montreal." 

This when discussed is a significant paragraph. Where are 
" the frontiers of Ruperts Land" if the French, whose Forts 
were all around Lake Winnipeg, had not reached them before 
the cession of Canada to G-reat Britain ? This is an important 
corroboration of the views of the boundary question explained 
in the present report. 

That " no competition had occurred within the Territories 
of the Hudson's Bay Company " up to that time may be very 
true, because the Company had never come up from the 
shores of the Bay, and the French had not gone down — from 
their places on Lake Winnipeg — to the Bay. The second 
paragraph above quoted may also be substantially true, but 
yet it is so framed as to convey to the general reader that the 
competition arose from the inhabitants of Canada advancing 
beyond where they had been before ; whereas it was the 
Hudson's Bay Company who then came up, for the first time, 
from the shores of the Bay, which led to the competition " first 
on the frontier parts " of Rupert's land, " then in the interior," 
on Lake Winnipeg, the Saskatchewan, &c, where the Cana- 
dians had long enjoyed the trade without competition. 

Such is the system and policy pursued by the Company to 
exclude from view and create erroneous impressions respect- 
ing the Western portion of this Province, than which there is 
perhaps no finer country in North America. The same course 
marks their proceedings at the present moment, for no inti- 
mation has been given to this country of their intention to 
apply for a renewal of the lease of the Indian Territories, 
though, exercising the privileges they do in countries subject 
to the Canadian Government, it would not have been unrea- 
sonable to expect a different course. Neither does it appear 
that they have taken any means to inform the inhabitants of 
those countries whose rights and interests are most deeply 



APPENDIX. 397 

affected by the action to be taken, that they were to make 
this early application for renewal of their lease. Had it been 
effected in the quiet manner they seem to have desired — a 
consummation which the thanks of the country are due to- 
the Imperial Government for having refused to sanction — 
they only would have been heard in their own ease, and the 
result would have been, alike to the people here and in the 
more remote territories, a surprise. 

Canada has no quarrel with the Hudson's Bay Company,, 
and desires no harsh measures towards them. It would be 
alike ruinous to them and injurious to the countries over 
which they hold either legal or illegal sway, to put a sudden 
stop to their operations, but it is an error to suppose that the 
governing of those countries is a task of uncommon difficulty. 
The state of anarchy which prevailed in those countries dur- 
ing the warfare of the Companies was the result of the strife 
between them, where there was no sort of authority, except 
what they seemed equally to wield, and not arising from any 
turbulent or ungovernable spirit on the part of the native 
population. On the contrary, the moment a recognized au- 
thority stepped in to control both Companies, implicit obedi- 
ence was at once yielded to it throughout those vast territories, 
and either party would have found itself powerless to com- 
mand followers for any purpose of further aggression. This 
was the occasion of the withdrawal of all commissions of the 
peace, previously granted to the leading people of the two* 
Companies, the appointment of two special Commissioners 
(one of them a member of the Executive Council of Lower 
Canada), and the issuing of a proclamation in the name of the 
Prince Eegent, by authority of a despatch from Earl Bathurst 
of 6th February, 1817, requiring the mutual restitution ot all 
the places and property captured during the strife, to the 
party who had originally possessed the same, and the entire 
freedom of the trade to each party, until further adjudicated 
upon. Galling as this restitution must have been in numerous 
instances, where party feeling, embittered by the loss of many 



398 APPENDIX. 

lives, had reached the highest pitch of excitement, it was im- 
mediately complied with. 

The proper course to pursue, therefore, would be to lay 
before the Imperial Government the expediency of annexing 
the Indian Territories to Canada, shewing that by this means 
only can those countries be retained long in the possession of 
G-reat Britain. For colonized they must and will be ; it is only 
a question of who shall do it. If we do not, the Americans 
will, and that in spite of anything the Company can do to 
prevent it. That these Territories are fit fields for settlement 
it is useless to dispute, for one physical fact upsets all theories 
to the contrary. "Where a country is found to sustain animal 
life to such an extent that hundreds of thousands of wild 
cattle find subsistence there both in summer and winter, there 
man also can find a home and plenty. Nor is the country 
possessing this characteristic confined to a narrow strip along 
the frontier, but continuing to widen to the westward it is 
found that the climate, even on the east side of the Kocky 
Mountains and at a depth of seven degrees North of the 
American Boundary, is milder than the average of the settled 
parts of Upper Canada. 

On the west side of the Rocky Mountains the climate is 
mild to a still higher latitude, but Vancouver's Island together 
with the contiguous main land is perhaps one "of the finest 
countries in the world for colonization. The only drawback 
is the difficulty of access, a difficulty which the present system 
will never remove, for it looms larger now than it did forty or 
fifty years ago, when the North-West Company of Canada 
poured a continuous stream of traffic across the continent. 
This Island cannot now of course be annexed to Canada on 
the same terms as the other Indian Territories, as the existing 
Charter under which the Island is held (a different and dis- 
tinct thing, be it remembered, from either the old Charter or 
the expiring Lease) entitles the Hudson's Bay Company to 
payment of the value of their establishments if the grant be 
rescinded, which Canada would naturally be expected to pay if 



APPENDIX. 399 

the Island were conceded to her, and it might be well to see 
now upon what terms this could be done, because it seems 
that if it be not done at the expiration of the Lease of the 
" Indian Territories," it could not be done afterwards, unless 
indeed the Company have failed to fulfil the conditions re- 
quired within the first five years. 

Twelve years ago the United States had no communication 
with their territories on the Pacific except by sea, and during 
the Oregon negociations, when proposing strenuous measures 
upon the subject, the President in his message to Congress, 
2nd December, 1845, says : 

" An overland mail is believed to be entirely practicable; and the importance of 
establishing such a mail at least once a month is submitted to the favourable conside- 
ration of Congress." 

How different the circumstances now, and how " entirely 
practicable " ? it has proved, need not be dwelt upon, but it 
must be remarked that at no other point, north of the Grulf 
of Mexico, are the facilities for communication across the con- 
tinent anything like equal to what they are through Canada, 
there being good navigation three-fourths, if not more, of the 
whole distance ; first to the head of Lake Superior, from 
whence the navigation is broken to Lake Winnipeg (though 
about 150 miles of this distance is navigable), then through 
that Lake to the Saskatchewan, on which there are obstruc- 
tions, in the lower part near the Lake, from whence the navi- 
gation is impeded to the very base of the Rocky Mountains. 

It would be very desirable, therefore, and quite practicable, 
if the British Government will consent to annex the Indian 
Territories, extending to the Pacific and Vancouver's Island, 
to Canada, to establish during summer a monthly communi- 
cation across the continent. It is of incalculable importance 
that these measures should be most forcibly impressed upon 
the Imperial Government at the present juncture, for on their 
solution depends the question of whether this country shall 
ultimately become a Petty State, or one of the Great Powers 
of the earth ; and not only that, but whether or not there 



400 APPENDIX. 

shall be a counterpoise favourable to British interests and 
modelled upon British institutions to counteract the pre- 
ponderating influence — if not the absolute dominion — to which 
our great neighbour, the United States, must otherwise attain 
upon this continent. 

No reference has been here made to the controversy between 
the Company and those who accuse them of exercising a per- 
nicious influence over the Indian population, nor is it neces- 
sary to enter into the subject further than to point out the 
erroneous impression the Company strive to inculcate, to the 
effect that they are necessary to the Indians. It may well be 
that the state of things is better under them than it was 
when the two powerful Companies were in hostile array 
against each other ; and it may be that their affairs are as well 
conducted, with reference to their effect upon the native 
population, as could well be expected of a Commercial Com- 
pany, having the primary question of profit and loss as the 
object of their association. But the question really comes to 
be, whether those countries shall be kept in statu quo till the 
tide of population bursts in upon them, over an imaginary 
line, from a country where it has been the rule that the Indian 
must be driven from the lands the white man covets ; or be 
opened up under the influence of the Canadian Government* 
which has always evinced the greatest sympathy towards the 
Indian race, and has protected them in the enjoyment of their 
rights and properties, not only in their remote hunting 
grounds, but in the midst of thickly-peopJed districts of the 

country. 

Joseph Cauchon, 

Commissioner of Crown Lands. 

Crow\ Lands Department, 
Toronto, 1857. 



APPENDIX. 401 

APPENDIX T. 

No 1. 

Me.Bearcroft's Opinion as to the Validity of the 
Charter of the Hudson's Bay Company. 

Q. 1st. Whether the King, without the co-operation of the other 
Legislative powers, can grant to any company an exclusive 
trade for ever, together with a right of seizing the person and 
goods of a fellow-subject, without legal process ; and if not, 
whether his having illegally granted such advantages and 
power, does not anna] the charter? 

A. I am of opinion that the King, without the assent of 
Parliament, cannot legally grant to any company, or to any 
individual, an exclusive trade for ever, together with a right 
to seize the person and goods of subjects, without process of 
law ; and that such a grant, if made, is illegal, void, and with- 
out effect. 

Q. 2nd. If this Charter is not valid upon the principle above 
stated, whether it is not voidable by the Company's neglecting 
to fulfil the views the King had when he granted it ? 

A . If such a Charter could be considered legal and valid in 
its commencement, yet it will be voidable by Sci. Fa. if the 
grantees neglect to endeavour, by reasonable and adequate 
means, to carry the purpose of it into effect. 

Q. 3rd. Whether the grant to them, of the right of fishing, is 
exclusive, or whether the Greenland fishermen, who have a 
right to fish at Greenland and the seas adjacent, have not a 
right to fish at Hudson's Bay ? 

A. The Charter in question, as to so much of it as affects to 
grant an exclusive trade and inflict penalties and forfeitures, 
being, as I conceive, illegal and void, I am of opinion that the 
Greenland fishermen, who have a right to fish there, have 
also a right to fish in Hudsom's Bay. 

Q. 4th. If an individual invades the Charter, by fishing or trad- 

BB 



402 APPENDIX. 

ing in any of the places granted to the Company, and they 
seize his people, ship or goods, whether they have any and 
what remedy ? 

A. If the Hudson's Bay Company, or those acting under 
their authority, shall venture to seize the person, ship, or 
goods of a British subject fishing there, the action is by action 
of trespass against the Company, or against the persons who 
do the act complained of, which action may be brought in 
any of the courts of Westminster Hall. 

Q. 5th. If you should be of opinion that the Charter is in its 
present form illegal, which is the best way of attacking it — by 
invading the patent, and permitting them to seize or bring an 
action, and complaining or defending, according to the cir- 
cumstances, or by applying to Parliament ? 

A. It is obvious that the safest way of attacking the Charter 
is by applying to Parliament or by Sci. Fa., though in case of 
seizure, I cannot help thinking an action of trespass by the 
party injured would be successful. 

Q. 6th. And generally to advise the parties proposing the pre- 
sent case, who wish to fish and trade in and near Hudson's 
Bay (and have sent out a ship which means to winter there, 
unless cut off by the Company's engines, and only wait for 
yoar opinion whether to send several more), for the best? 

A. Upon the whole of this case, I am strongly inclined to 
think that the parties interested, if it is an object of importance 
to them, may venture to carry on the proposed trade imme- 
diately. The case of the East India Company and Sandys, 
determined at such a time, and by such Judges as it was, I 
cannot take to be law ; and as to the length the said Charter 
has been granted and enjoyed, it is a clear and a well-known 
maxim of law, that which is not valid in the beginning can- 
not become so by lapse of time. 

(Signed) Edward Bearcroft. 



I 



APPENDIX. 403 

No. 2. 
Mk. Gtibbs' Opinion. 

let. Such a Charter may certainly be good in some cases, 
but I am of opinion that the Charter in question was originally 
void, because it purports to confer on the Company exclusive 
privileges of trading which, I think, the Crown could not 
grant without the authority of Parliament. In Sandys against 
the East India Company, Skinn. 132, 165, 197, 223, the argu- 
ments used against their Charter, which was not then con- 
firmed by Act of Parliament, appear to me decisive upon the 
subject; and although both J. Jefferies and the other Judges 
of the King's Bench decided in favour of the Charter, I have 
understood that their judgment was afterwards reversed in 
Parliament. 

Adam Smith, in his Wealth of Nations, treats it as an ad- 
mitted point, that the Charter granted to the Hudson's Bay 
Company, and others of the like sort, not being confirmed by 
Parliament, are void, which I mention, not as a legal author- 
ity, but only to shew how the question has been generally un- 
derstood. 

2nd . A Charter may be forfeited on this ground. 

3rd. I should doubt whether they had by this acquiescence 
forfeited their exclusive privilege, if it ever existed ; but this 
question is immaterial after my answer to the first. 

4th. If the former were legal, this would be so likewise. I 
think them both legal, on the ground of my answer to the first 
query. 

5th. Probably they might prosecute the captain ; but if this 
question were material, it would be necessary that I should 
see a copy or abstract of the Charter before I could answer it. 

6th. He might, if there were any legal cause of prosecution. 

7th. I hardly think that they would be held to fall within 
this Act, nor does it signify whether they do or not. If 
my opinion is well founded, the North-West Company may 



404 APPENDIX. 

navigate Hudson's Bay and carry on their trade as they 
please, without any fear of legal molestation in consequence of 
the monopoly claimed by the Hudson's Bay Company under 
their Charter, and I think they may act as if no such Charter 
existed. 

(Signed) V. G-ibbs. 

Lincoln's Inn, June 7th, 1804. 



No. 3. 



In the matter of the Hudson s Bay Company's Charter and their 
Grants to Lord Selkirk. 

(Copy.) 

Questions, and Opinion of Sir Arthur Pigott, Mr. 
Spankie, and Mr. Brougham. — January, 1816. 

1st. Whether the exclusive trade, territories, powers and 
privileges granted by the Charter of Charles the Second, con- 
firmed by the expired Act of King William, is a legal grant, 
and such as the Crown was warranted in making ; and if it 
was, whether it entitles the Company to exclude the Canadian 
traders from entering their territory to trade with the Indians, 
and authorises the Governors and other officers appointed by 
the Company to seize and confiscate the goods of the persons 
so trading, without the license of the Company ? 

The prerogative of the Crown to grant an exclusive trade 
was formerly very much agitated in the great case of " The 
East India Company versus Sandys." The Court of King's 
Bench, injwhich Lord Jefferies then presided, held and decided 
that such a grant was legal. We are not aware that there has 
since been any decision expressly on this question in the 
Courts of Law, and most of the charters for exclusive trade 
and exclusive privileges to companies or associations, have, 
since the Re volution, received such a degree of legislative 



APPENDIX. 405 

sanction or recognition, as perhaps to preclude the necessity 
of any judicial decision on it. Much more moderate opinions 
were, however, entertained concerning the extent of the pre- 
rogative, after the Revolution, than prevailed in the latter 
part of the reign of Charles the Second, and in the reign of 
James the Second, and to those is to be attributed the frequent 
recourse which, after the Revolution, was had to legislative 
authority on such cases, and particularly in the very case of 
this Company, evidenced by the temporary Act of the 2nd 
of William and Mary, " for confirming to the Governor and 
Company trading to Hudson's Bay their privileges and trade ;" 
a confirmation the duration of which the Legislature expressly 
limited to seven years and the end of the then next session of 
Parliament, and no longer : and part of the preamble of that 
Act is, in effect, a legislative declaration of the insufficiency 
and inadequacy of the Charter for the purposes professed in 
it, without the aid and authority of the Legislature ; which 
legislative aid and authority entirely ceased soon after the 
expiration of seven years after that Act passed. 

In 1745, indeed, the 18th Geo. II., cap. 17, for granting a 
reward for the discovery of a North-west Passage through 
Hudson's Straits, enacts, " that nothing therein contained shall 
any ways extend, or be construed to take away or prejudice 
any of the estate, rights or privileges of or belonging to the 
Governor and Company of* Adventurers of England trading 
into Hudson's Bay ; " but this provision gives no validity 
whatever to the Charter, and only leaves its effect and au- 
thority as they stood before that Act. and entirely unaffected 
by it. 

These parliamentary proceedings may at least justify the 
inference that the extent of the prerogative in this matter was 
considered as a subject which admitted of great doubt, in 
times when the independence of the judges insured a more 
temperate and impartial consideration of it. They may, how- 
ever, be perhaps considered as too equivocal to afford any 
certain and conclusive authority on the strict question of law. 



406 APPENDIX. 

Such rights, therefore, as the Hudson's Bay Company can 
derive from the Crown alone, under this extraordinary Char- 
ter, such as it is, may not be affected by these proceedings or 
declarations, and they may now rest entirely upon, and stand 
or fall by, the Common Law Prerogative of the Crown to 
make such a grant. 

Upon the general question of the right of the Crown to 
make such a G-rant, perhaps it may not be necessary for the 
present purpose that we should give any opinion. The right 
of the Crown merely to erect a company for trading by char- 
ter, and make a grant of territory in King Charles the Second's 
reign, may not be disputable ; and on the other hand, besides 
that this Charter seems to create, or attempt to create, a Joint 
Stock Company, and to grant an exclusive right of trading, 
there are various clauses in the Charter, particularly those 
empowering the Company to impose fines and penalties, to 
seize or confiscate goods and ships, and seize or arrest the 
persons of interlopers, and compel them to give security in 
c£l,000, &c, &c, which are altogether illegal, and were al- 
ways so admitted to be, and among other times, even at the 
time when the extent of the Prerogative in this matter was 
maintained at its height, to grant an exclusive right to trade 
abroad ; and even if, by virtue of their Charter, they could 
maintain an exclusive right to trade, we are clearly of opinion 
that they and their officers, agents or servants could not justify 
any seizure of goods, imposition of fine or penalty, or arrest 
or imprisonment of the persons of any of His Majesty's sub- 
jects. Probably the Company would have some difficulty in 
finding a legal mode of proceeding against any of those who 
infringe their alleged exclusive lights of trading, or violate 
their claimed territory ; for we hold it to be clear, that the 
methods pointed out by the Charter would be illegal, and 
could not be supported. 

But we think that the Hudson's Bay Company and their 
grantee, Lord Selkirk, have extended their territorial claims 
much farther than the Charter or any sound construction of 



APPENDIX. 407 

it will warrant. Supposing it free from all the objections 
to which we apprehend it may, in other respects, be liable, 
the words of the Grant, pursuing the recital of the petition of 
the grantees, with a yery trifling variation, and with none 
that can affect the construction of the instrument, are of " the 
sole trade and commerce of all those seas, straits, bays, rivers, 
lakes, creeks and sounds, in w T hatever latitude they shall be, 
that lie within the entrance of the Straits, commonly called 
Hudson's Straits, together with the lands and territories upon 
the countries, coasts and confines of the seas, bays, lakes, 
rivers, creeks and sounds aforesaid : " that is, within the Straits 
— and these limits are frequently referred to in the subsequent 
parts of the Charter, and always referred to throughout the 
Charter as "the limits aforesaid." 

There is indeed (p. 10,) an extension of the right of trade, 
and His Majesty grants that the Company " shall for ever 
hereafter have, use and enjoy not only the whole entire and 
only liberty of trade and traffic, and the whole entire a,nd 
only liberty, use and privilege of trading and traffic to and 
from the territories, limits and places aforesaid, but also the 
whole and entire trade and traffic to and from all havens, 
bays, creeks, rivers, lakes, and seas into which they may find 
entrance or passage by water or land, out of the territories, 
limits and places aforesaid, and to and with all the natives 
and people, inhabitants, or which shall inhabit within the 
territories, limits and places aforesaid, and to and with all 
other nations inhabiting any of the coasts adjacent to the said 
territories, limits and places aforesaid, which are not already 
possessed as aforesaid." 

It is plain, therefore, that the Territorial Grant was not in- 
tended to comprehend all the lands and territories that might 
be approached through Hudson's Straits by land or water. 
The Territorial Grant then appears to be limited by the rela- 
tion and proximity of the territories to Hudson's Straits. The 
general description applying to the whole, is the seas, &c, 
that lie within Hudson's Straits, and the lands, &c, upon the 



408 APPENDIX. 

countries, coasts, and confines of the seas, &c., that is, Redden- 
do Singula Singulis, the lands upon the countries, coasts, and 
confines of each of the seas, rivers, &c, naturally including 
such a portion of territory as might be reasonably necessary 
for the objects in view ; but it is not a grant of all the lands 
and territories in which the seas, rivers, &c, lie, or are situ- 
ated, or which surround them to any indefinite extent or dis- 
tance from them. Still less is it a grant of all the lands and 
territories lying between the seas, straits, rivers, &c, though 
many hundred or thousand miles or leagues of lands and ter- 
ritories might lie between one sea, strait, river, lake, &c, and 
another sea, strait, river, lake, &c, and though the quantity of 
land comprised in this interior situation, and far distant from 
any coast or confine of the specified waters, might exceed in 
dimensions the extent of many existing powerful Kingdoms 
or States. Within the straits, must mean such a proximity to 
the straits as would give the lands spoken of a sort of affinity 
or relation to Hudson's Straits, and not such lands as, from 
their immense distance (in this case the nearest point to 
Hudson's Bay being 700 miles, and from thence extending to 
a distance of 1 ,500 miles from it), have no such geographical 
affinity or relation to the straits, but which are not even ap- 
proached by the Canadians through or by the straits in ques- 
tion. The whole Grant contemplates the straits as the access 
to the lands and territories therein referred to ; and as there is 
no boundary specified, except by the description of the coasts 
and confines of the places mentioned, that is, the coasts and 
confines of the seas, &e. Within the straits, such a boundary 
must be implied as is consistent with that view, and with the 
professed objects of a trading company intending, not to found 
Kingdoms and establish States, but to carry on fisheries on 
those waters, and to trade and traffic for the acquisition of 
skins and peltries, and the other articles mentioned in the 
Charter ; and in such a long tract of time as nearly 150 years 
now elapsed since the grant of the Charter, it must now be, 
and must indeed long since have been, fully ascertained by the 



APPENDIX. 409 

actual occupation of the Hudson's Bay Company, what portion 
or portions of lands and territories in the vicinity, and on the 
coasts and confines of the waters meniioned and described as 
within the straits, they have found necessary for their purposes, 
and for forts, factories, towns, villages, settlements or such other 
establishments in such vicinity, and on such coasts and con- 
fines, as pertain and belong to a Company instituted for the 
purposes mentioned in their Charter, and necessary, useful, 
or convenient to them within the prescribed limits for the 
prosecution of those purposes. The enormous extensions of 
land and territory now claimed appears therefore to us not 
to be warranted by any sound construction of the Charter ; 
and if it could be so, we do not know where the land and 
territory of the Hudson's Bay Company, granted by this 
Charter, terminates, nor what are the parts of that vast Con- 
tinent on which they have taken upon them to grant 116,000 
miles of territory exempted from their proprietorship under 
their Charter. 

Indeed, there may be sufficient reason to suppose that the 
territories in question, or part of them, had been then visited, 
traded in, and in a certain degree occupied by the French 
settlers or traders in Canada, and their Beaver Company 
erected in 1630, whose trade in peltries was considerable prior 
to the date of the Charter. These territories, therefore, would 
be expressly excepted out of the G-rant ; and the right of 
British subjects in general to visit and trade in these regions 
would follow the national rights acquired by the King, by the 
conquest and cession of Canada, and as enjoyed by the French 
Canadians previous to that conquest and cession. 

No territorial right, therefore, can be claimed in the districts 
in question ; and the exclusive trade there cannot be set up 
by virtue of the Charter, these districts being remote from 
any geographical relation to Hudson's Bay and to the Straits, 
and not being in any sense within the straits, and not being 
approached by the Canadian traders, or other alleged inter- 
lopers through the interdicted regions. Of course no violence 



410 APPENDIX. 

to or interruption of trade could be justified there under these 
territorial claims. 

2nd. Whether the Hudson's Bay Company were warranted 
in making aG-rant to Lord Selkirk, as one of their own body, 
of the immense district of territory described in Governor 
M'Donell's Proclamation, notwithstanding the opposition of 
part of the Proprietors of Stock ; and after making such Grant, 
has the Company any right to exercise their jurisdiction in 
appointing Governors and other officers over that district ; or 
can they grant or transfer such power to his lordship? If you 
should be of opinion that the Grant to his lordship is illegal, 
unwarrantable by the Charter, what measures ought to be 
taken to set aside the same ? 

The validity of the Grant to Lord Selkirk may be consid- 
ered both as it affects the members of the Company and the 
public at large. 

If, contrary to our opinion, the land and territory in ques- 
tion were within the Grant, then the Grant of so large a por- 
tion of territory as that to Lord Selkirk, being not less than 
116,000 square miles, might perhaps seem an abuse of the 
Charter, which might justify the interference of the Crown. 
Because, though the Company might have a right to make 
grants of land, such Grant must be for the promotion of,oratleast 
must be consistent with, the object of the Institution. But the 
Grant to Lord Selkirk tends to an establishment indepen- 
dent of the Company, inconsistent with the purposes of their 
Institution and its effects ; erecting a sub-monopoly in one 
person, to the detriment both of the Company and of the pub- 
lic. The Company could confer no power upon Lord Selkirk 
to appoint Governors, Courts of Justice, or exercise any inde- 
pendent authority, nor could they, directly or indirectly, trans- 
fer their authority to him, to be exercised by him in his own 
name. Supposing the Grant of land to be such a Grant as 
falls within the powers of the Company to make, their supe- 
rior lordship and authority would continue as before, and 
must be exercised through them. 



APPENDIX. 411 

3rd. Whether the jurisdiction given by the Act of 43rd G-eo. 
III. to the Canadian Courts of Criminal Judicature, extends 
to the Territories of the Hudson's Bay Company, so as to en- 
title those Courts to try and punish offences committed within 
those territories ? And whether Governor M'Donell, and Mr. 
Spencer, his Sheriff, can legally be tried before the Canadian 
Courts for the offence with which they now stand charged ? 

There seems no reason to doubt that offences actually com- 
mitted in the territories and districts in dispute, where no 
Court of Judicature is or ever has been established, might, in 
point of jurisdiction, legally be tried by the Courts of Canada, 
under the 43rd G-eo. III., Cap. 138 ; and indeed, unless this 
district was within the provisions of that Act, we cannot dis- 
cover what territory was meant to be included in it ; but we 
think that though the jurisdiction might be capable of being 
supported, the acts done by Messrs. M'Donell and Spencer 
could not be deemed larceny, and that they, or others acting 
in similar circumstances, ought not to be indicted or brought 
to a trial for the crime of larceny. They acted, perhaps erro- 
neously, upon a claim of territorial dominion and of exclusive 
commercial privilege, and may be liable to be proceeded, 
against as for a trespass or other injury to persons or property; 
but we think they could not be properly convicted on a charge 
of felony. 

4th. Is it competent to the Governors and other officers 
already appointed, or that may be appointed by the Hudson's 
Bay Company, to seize and bring to trial before their Courts 
of Judicature, His Majesty's Canadian subjects who may be 
found trading withm the Company's territories, for infringing 
the Company's monopoly, or for committing any other alleged 
crime or offence ? 

Supposing the Charter of the Company valid, and the dis- 
tricts in dispute to be within their limits, we should still doubt 
whether the G-overnor and Company have lawful power by 
the Charter to establish courts for the trial by the laws of 
England of offences committed therein. That power the 



412 APPENDIX. 

Company have never yet attempted to exercise, though nearly 
150 years have elapsed since they procured their Charter. 
But if they should still possess the extraordinary power with- 
out further authority, legislative or regal, we should never- 
theless think that no Courts there established would have 
authority to try and punish as an offence the act of going 
there simply; which, if the G-rant be legal, could amount at 
the most only to a misdemeanour or contempt of the King's 
lawful authority, to be prosecuted at the suit of His Majesty. 
But the Charter itself seems to take the offence, as far as the 
Company are concerned, out of the jurisdiction of the local 
Courts by (illegally indeed) prescribing certain forfeitures, 
and declaring (page 12) " that every the said offenders, for 
their said contempt to suffer such punishment as to us, our 
heirs and successors, shall seem meet or convenient, and not 
to be in amprize (query, mainprize ?) delivered until they and 
every of them shall become bound unto the said Governor for 
the time being, in the sum of £ 1,000 at least, at no time there- 
after to trade," &c. A subsequent clause (page 16) authorizes 
the seizing and sending to England those who come into their 
territories without authority. It seems, therefore, that the 
Courts in question would have no power to try as an offence 
at common law the mere coming into the Company's territorie s 
contrary to the prohibition in the Letters Patent, which point 
out other modes of proceeding, and legally confer no other 
powers applicable to the case. 

If the question were merely a question of boundary be- 
tween two acknowledged adjacent colonies or provinces, it 
might perhaps be determined by the King in Council, where 
we apprehend such a jurisdiction is vested, and has been ex- 
ercised, but that probably would not set at rest the principal 
points, or prevent interference. The validity of the G-rant of 
an exclusive trade might, we apprehend, be tried directly by 
Scire Facias, or incidentally in actions of trespass, which, how- 
ever, might still leave other main points undecided ; and the 
Company might perhaps be capable of retaining some part of 



APPENDIX. 413 

what has been granted to them, and might fail as to many- 
others. In these circumstances, it appears that interests and 
pretensions so opposite, and which may be productive of so 
much confusion and disorder, and of consequences so danger- 
ous and destructive to the persons and properties of those 
who, by reason of the failure of the ordinary means of pro- 
tection afforded by the law, may be said to be peculiarly under 
the safeguard of Grovernment, can only be effectually and 
satisfactorily adjusted and reconciled by G-overnment, with 
the aid and authority of Parliament ; and by that authority 
(after causing such an investigation into them as Grovernment 
would, in such a case, probably feel it indispensable to make, 
and are fully possessed by the law officers of the Crown, and 
otherwise, of all the means of making,) due allowance would 
be made for such rights of the Company as were deemed 
legal and well founded, and protection and freedom secured 
to the Canadians as well as to the rest of the King's subjects,, 
in the prosecution of that commerce which the Canadians have 
long enjoyed, and which the rest of the King's subjects have 
frequently, and whenever they have thought proper, carried 
on, and which, it is stated to us, they have never been hitherto 
attempted to be interrupted in by the Hudson's Bay Company. 



No. 4. 



Opinion of Richard Bethell, A.Gr., and Henry S. Keat- 
ing, S.Gr., upon Various Matters Connected with 
the Charter of the Hudson's Bay Company. 

Lincoln's Inn, July, 1857. 

Sir, — We are favoured with Mr. Merivale's letter of the 9th 
of June ultimo, in which he stated that he was directed by 
you to transmit to us copies of two despatches from the 
Grovernor of Canada, inclosing the copy of a Minute of his 



414 APPENDIX. 

Executive Council, and extract from another Minute of the 
same in reference to the questions respecting the affairs of the 
Hudson's Bay Company, then under investigation by a Com- 
mittee of the House of Commons. 

We were also requested to observe from the former of those 
Minutes that the Executive Council suggest, on the part of 
Canada, a territorial claim over a considerable extent of coun- 
try, which is also claimed by the Hudson's Bay Company, as 
owners of the soil, and with rights of government and exclu- 
sive trade under their Charter. 

"We were also requested to observe by the annexed Parlia- 
mentary Papers of the 12th of July, I80O, that the statement 
of the Hudson's Bay Company's rights as to territory, trade, 
taxation, and government, made by them to Earl Grey, as 
Secretary for the Colonies, on the 13th September, 1849, was 
submitted to the then law officers of the Crown, who reported 
that they were of opinion that the rights so claimed by the 
Company properly belonged to them, but suggested, at the 
same time, a mode of testing those claims by petition to Her 
Majesty, which might be referred to the Judicial Committee. 

Mr. Merivale was farther to annex a Parliamentary Eeturn 
made in 1842, containing the Charter of the Company, and 
documents relating thereto ; and another of 23rd April, 1849, 
containing, among other papers, an Act of 2nd William and 
Mary, " for confirming to the Governor and Company trading 
to Hudson's Bay their privileges and trade." 

The rights so claimed by the Company have been repeatedly 
questioned since 1850 by private persons in correspondence 
with the Secretary of State, and were then questioned to a 
certain extent, as appears by those despatches, by the present 
local Government of Canada. 

Mr. Merivale was also to request that we should take those 
papers into our consideration, and report — 

Whether we thought the Crown could lawfully and consti- 
tutionally raise, for legal decision, all or either of the follow- 
ing questions : — 



APPENDIX. 415 

The, validity at the present day of the Charter itself . 

The validity of the several claims of territorial right of 
government, exclusive trade, and taxation insisted on by the 
Company. 

The geographical extent of this territorial claim (supposing 
it to be well founded to any extent). 

And if we were of opinion that the Crown could do so, we 
were requested further to state the proper steps to be taken, 
in our opinion, by the Crown, and the proper tribunal to be 
resorted to ; and whether the Crown should act on behalf of 
the local Government of Canada, as exercising a delegated 
share of the Royal authority, or in any other way. 

And, lastly, if we should be of opinion that the Crown 
could not properly so act, whether we saw any objection to 
the questions being raised by the local G-overnment of 
Canada, acting independently of the Crown, or whether they 
could be raised by some private party in the manner suggested 
by the law advisers in 1850, the Crown undertaking to bear 
the expense of the proceedings. 

In obedience to your request, we have taken the papers 
into our consideration, and have the honour to report — 

That the questions of the validity and construction of the 
Hudson's Bay Company's Charter cannot be considered apart 
from the enjoyment that has been had under it during nearly 
two centuries, and the recognition made of the rights of the 
Company in various acts, both of the Government and the 
Legislature. 

Nothing could be more unjust, or more opposed to the 
spirit of our law, than to try this Charter as a thing of yester- 
day, upon principles which might be deemed applicable to it 
if it had been granted within the last ten or twenty years. 

These observations, however, must be considered as limited 
in their application to the territorial rights of the Company 
under the Charter, and to the necessary incidents or conse- 
quences of that territorial ownership. They do not extend 
to the monopoly of trade (save as territorial ownership justi- 



416 APPENDIX. 

ties the exclusion of intruders), or to the right of an exclusive 
administration of justice. 

But we do not understand the Hudson's Bay Company as 
claiming anything beyond the territorial ownership of the 
country they are in possession of, and the right, as incident to 
such ownership, of excluding persons who would compete 
with them in the fur trade carried on with the Indians resort- 
ing to their districts. 

With these preliminary remarks we beg leave to state, in 
answer to the questions submitted to us, that in our opinion 
the Crown could not, with justice, raise the question of the 
general validity of the Charter ; but that on every legal prin- 
ciple the Company's territorial ownership of the lands, and 
the rights necessarily incidental thereto (as, for example, the 
right of excluding from their territory persons acting in viola- 
tion of their regulations), ought to be deemed to be valid. 

But with respect to any rights of government, taxation, ex- 
clusive administration of justice, or exclusive trade, otherwise 
than as a consequence of the right of ownership of the land, 
such rights could not be legally insisted on by the Hudson's 
Bay Company as having been legally granted them by the 
Crown. 

This remark, however, requires some explanation. 

The Company has, under the Charter, power to make ordi- 
nances (which would be in the nature of by-laws) for the gov- 
ernment of the persons employed by them, and also power to 
exercise jurisdiction in all matters, civil and criminal ; but no 
ordinance would be valid that was contrary to the Common 
Law, nor could the Company insist on its right to administer 
justice as against the Crown's prerogative right to establish 
courts of civil and criminal justice within the territory. 

We do not think, therefore, that the Charter should be 
treated as invalid because it professes to confer these powers 
upon the Company ; for to a certain extent they may be law- 
fully used, and for an abuse of them the Company would be 
amenable to law. 



APPENDIX. 417 

The remaining subject for consideration is the question of 
the geographical extent of the territory granted by the Charter, 
and whether its boundaries, can in any and what manner be 
ascertained. In the case of grants of considerable age, when 
the words, as is often the case, are indefinite or ambiguous, 
the rule is, that they are construed by usage and enjoyment, 
including in these latter terms the assertion of ownership by 
the Company on important public occasions, such as the 
Treaties of Ryswick and Utrecht, and again in 1750. 

To these elements of consideration upon this question must 
be added the enquiry (as suggested by the following words 
of the Charter, viz., " not possessed by the subjects of any other 
Christian prince or state "), whether, at the time of the Charter, 
any part of the territory now claimed by the Hudson's Bay 
Company could have been rightfully claimed by the French 
as falling within the boundaries of Canada or Nouvelle France, 
and also the effect of the Acts of Parliament passed in 1774 
and 1791. 

Under these circumstances, we cannot but feel that the im- 
portant question of the boundaries of the Hudson's Bay Com- 
pany might with great utility, as between the Company and 
Canada, be made the subject of a quasi-judicial inquiry. 

But this cannot be done except by the consent of both 
parties, namely, Canada and the Hudson's Bay Company ; nor 
would the decision of a Committee of the Privy Council have 
any effect as a binding judicial determination. 

But if the Hudson's Bay Company agree to the proposal 
of the Chief Justice of Canada, that the question of boundaries 
should be referred to the Privy Council, it being further under- 
stood by both parties that the determination of the Council 
shall be carried into effect by a declaratory Act of Parliament, 
we think the proceeding would be the best mode of deter- 
mining that which is, or ought to be, the only real subject of 
controversy. 

The form of procedure might be a petition to the Queen by 

Chief Justice Draper, describing himself as acting under the 
cc 



418 APPENDIX. 

direction of the Executive Council of Canada, unless, which 

would be the more solemn mode, an address were presented 

to Her Majesty by the Canadian Parliament. 

Counsel would be heard on behalf of Canada, and of the 

Company. 

We are, &c, 

(Signed) Richard Bethell, 

Henry S. Keating 
The Eight Honourable 

H. Labouchere, M.P., &c. 



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